Complying with federal, state and local equal employment opportunity laws and regulations is as important as anything an employer does while hiring and in ordering a background check on a job candidate.
The Equal Employment Opportunity Commission enforces federal equal opportunity laws and issues regulations in support of those laws.
The reason is quite clear, according to the EEOC: “In all cases,” the EEOC explains in its publication on what employers need to know, “make sure that you’re treating everyone equally.”
Easily said, but some regulations can be more than a bit confusing to someone not accustomed to them. That’s why it’s always a best practice to use a professional background check company, such as Global Backgrounds, to explore the backgrounds of job candidates. Professional staff are paid to know the laws and regulations, and to conduct background checks in a manner that satisfies legal requirements.
The reason it’s so important for an employer to comply with EEOC rules and regulations is that the rules essentially exist to protect job applicants. They are civil rights laws.
Maintaining Records
Under EEOC regulation, an employer must hold onto the findings of a background check for one year. That's from the date the records were made, or from the date an action was taken, such as a hiring or firing. Included under this rule are application forms and supporting documents.
Educational institutions and state and local governments must maintain the records for two years. This regulation applies not just to people hired, but also people who applied and were not hired, and people who were interviewed.
Federal contractors have additional burdens under Federal Trade Commission rules. A contractor that has 150 or more employees and holds a federal contract for at least $150,000 must hold the records for two years.
If an employee or applicant files a discrimination charge against an employer, the records must be maintained until the complaint is resolved.
What Employers May Not Do
This is a short but extremely important list, so let’s look at it first.
Employers may not order a background check when that decision is based on:
Race
National origin
Skin color
Sex
Religion
Disability
Genetic information, including family medical history
Age, if the job candidate is 40 or older
Although Title VII of the 1964 Civil Rights Act does not mention sexual identity as a protected class, it has been added by the U.S. Supreme Court. Employers also must avoid discriminating against applicants or employees on the basis of the above factors as they apply to their partners or children. In other words, for example, if you may not discriminate against a job applicant on the basis of race, you also may not discriminate because of the race of the applicant’s partner, spouse or children. Also banned is discrimination against victims of domestic violence, sexual assault or stalking, whether the victim is an employee or applicant, or their partners or children.
Examples of violations, according to EEOC guidelines: asking a person of color for financial information or checking on it but not asking other candidates or checking on theirs; asking only people of a certain race about criminal history; or asking medical questions before a conditional job offer has been made.
Some EEOC regulations apply to businesses based on their size —that is, based on the number of employees they have. It’s good to know where your company fits in. Generally speaking, the bigger the company is, the more restrictive are the rules that apply.
How To Use — and Not Use —Background Information
Often it’s not the information an employer gathers but how it is used in hiring decisions that determines if EEOC regulations have been met or violated.
“Any background information you receive from any source must not be used to discriminate in violation of federal law,” the EEOC advises employers.
“Apply the same standards to everyone,” the EEOC goes on to say, “regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older).” That means, for instance, that an employer is barred from rejecting applicants of one ethnicity for certain financial or criminal reasons while it accepts applicants of other ethnic backgrounds with the same or similar financial or criminal histories.
In some cases an employer might violate discrimination standards by considering the same background findings from applicant to applicant and group to group without taking into account that some background problems may disproportionately affect certain protected groups. “For example,” the EEOC advises, “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 another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee.”
Special care must be taken by employers when background check problems are caused by a disability, the EEOC says. The workaround, the EEOC says, is to offer a person with a disability the opportunity to demonstrate his or her ability to do the job, despite the findings in a background check of disabilities. Allowing that opportunity is not necessary if doing so would cause “significant financial or operational difficulty,” the EEOC states.
A Written Policy To Stay in Line
The best way to stay in line — to run your hiring efficiently without violating EEOC policies — is to come up with a hiring policy and put it in writing. A written policy helps to eliminate errors in judgment and in action when a candidate fails a background check.
The policy must be designed to:
Meet EEOC guidelines, as well as those from other relevant agencies.
Incorporate state and local laws and regulations that may be more protective of applicants than federal rules are. (State and local regulations are not allowed to be less protective than federal laws are.)
Treat all applicants equally.
Spell out discriminatory practices that must be avoided.
Keep people who do your hiring apprised of protected groups and how to interact — and not interact — with them legally.
Properly assess information from interviews and background reports.
Keep you within the law when making final decisions, including taking adverse actions.