Most employers are already familiar with the concept of using background checks, knowing that it’s not permissible to use background checks in a discriminatory manner. If the decision is made to check into an individual’s background with the sole motivation being that person’s religion, disability, sex, color, national origin, age, genetic information, or race, this is illegal. Employers should always stay abreast of updates related to the workplace to ensure contact compliance of federal regulations and recommendations.

Medical Information Concerns

In recent months, the Federal Trade Commission and the EEOC released additional information regarding other problems that might arise through the use of background checks. To start with, employers should be aware that they are forbidden from seeking an individual’s genetic information, like family medical history. No medical questions can be asked of a job applicant before a job offer is made, either. Medical questions, in fact, can only be asked after a person has begun working at the job and the employer has evidence that the employee is unable to do the job or otherwise poses a safety risk as a result of a medical condition.

Disparate Impact Problems

Employers should also be aware of adopting a policy or practice that excludes individuals with particular criminal records if that policy disadvantages persons of a certain race or other protected characteristic. That policy can also be troublesome if it does not accurately predict who will be a safe and responsible employee. Any problems that arose during a background check that could be the fault of a disability may also give cause for concern to employers. For example, a low credit score that was caused by a disability or injury should not exclude and individual from an opportunity to be employed.

Fair Credit Reporting Act

This same report mentions employer responsibilities under the Fair Credit Reporting Act. This means that employers must share their intent to use information obtained from a background reporting company for the purposes of making employment decisions. Employment application verbiage or a verbal notification do not meet the qualifications of this requirement.

The joint report recommends that an employer receive the applicant’s written permission in advance to conduct any background checks. If the employer has the intention of continuing to use background checks throughout the length of the person’s employment, the employer should make this clear at the outset. If the employer uses information from the report to make a decision about an applicant, the employer must tell the applicant that he or she was rejected because of information in the report, the name and contact information of the company providing the report, and that the applicant has a 60 day period in which to file a dispute regarding accuracy or completeness of such a report.

Religious Dress

New guidelines explain that an employee should not have to use any specific words to request an accommodation for religious dress. An employer can only deny a request for an accommodation if doing so could cause an “undue hardship” in the workplace. Clothing worn for personal preference rather than for religious reasons does not fall under this protection.

Employers are forbidden from requiring an employee to cover any religious garb, articles of faith, or markings if doing so would violate that employee’s religious beliefs, segregate an employee due to concerns that customers would be biased towards the religious garb or grooming, or assign applicants to positions without customer contact due to feared customer reaction regarding the religious grooming or clothing.

If you believe you have been the victim of discrimination by an employer, you should see a lawyer as soon as possible to discuss your options.

References:

EEOC: Background Checks – What Employers Need to Know

EEOC and FTC Jointly Issue New Background Check Guidance

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