Per the EEOC, “Any background information you receive from any source must not be used to discriminate in violation of federal law.” This means that you should:

  • Apply the same standards to everyone, regardless of race, national origin, color, sex, religion, disability, genetic information (including family medical history) or age (40 or older). For example, if you don’t reject applicants of one ethnicity with certain financial histories or criminal records, you can’t reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
  • Take special care when basing employment decisions on background check concerns that may be more common:
    • Among people of a certain race, color, national origin, sex or religion;
    • Among people who have a disability;
    • Among people age 40 or older.

For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin or other protected characteristic and does not accurately predict who will be a responsible, reliable or safe employee. In legal terms, the policy or practice has a ‘disparate impact’ (affects certain classes of people more than others) and is not ‘job related and consistent with business necessity.’

  • Be prepared to make exceptions when problems revealed during a background check are disability related. If negative background check information was caused by a disability, or if the information doesn’t impact the person’s ability to do the job and doesn’t cause the business significant financial or operational difficulty or risk, you should allow the person to demonstrate his or her ability to do the job—despite the negative background information.

Next time we’ll take up the question of how to handle an “adverse action.”