Background Checks


Recent decisions by the Equal Employment Opportunity Commission could make an employer believe that the safest course of action is to offer everybody who comes in the door a job.  The truth of the matter, however, is much simpler; and the purpose of this article is to present, in the simplest terms possible, guidance for employers on safe hiring practices.

Most HR people know there are “protected categories” of people against whom an employer may not discriminate when hiring employees.  Those characteristics are age, disability, genetic information, national origin, pregnancy, race/color, religion, retaliation, sex, citizenship, familial status, or veteran.  In theory at least, an employer could have a hiring policy that bars hiring people who are 6’5” in height and taller, (although it’s difficult to imagine why any employer would do that), and there’s nothing tall people could do about it BECAUSE height is not a protected category…yet.  By the same token, if an employer has a policy of only hiring people at least 6’5” in height or taller, people less than that minimum couldn’t do anything about that hiring practice, either.  Why?  Again, because height is not a federally protected class.  On the other hand, if an employer has a policy against, let’s say, hiring Methodists, people of that faith could claim they were being discriminated against on the basis of their religion,

The only exceptions are the requirements of the job itself.  If the job requires being strong enough to lift a specific amount of weight over and over again, applicants, regardless of the previously listed protected classes who cannot perform the required task, can be denied employment regardless of whether or not an inordinate number of applicants fall within a protected category.

The other area of emerging concern is the use of court checks to make hiring decisions.  In a nutshell, there are two questions employers should ask themselves.  First, how long ago was an applicant’s conviction?  Second, does the nature of the crime for which the applicant was convicted potentially put employees or customers at risk of any type of harm?  The essential point is an employer may not rule applicants out of consideration for employment simply because a court check shows they were convicted of a crime.

The best general advice about hiring practices is to keep up on EEOC decisions and rulings made based on the provisions of the Fair Credit Reporting Act to make sure your hiring practices are in compliance.  Common sense should prevail in most hiring decisions, but it’s far better to be safe and know what the latest decisions are, than to be sorry for not knowing what’s happening in an increasingly complicated field of fairly hiring new employees.