Employment: EEOC Provides Guidance on Background Checks to Public Employers Which Provides Insight for Private Employers

08.01.11

Most employers use some type of pre-hire screening, whether it be simply calling references or an elaborate background check conducted by a third party vendor. Recently, the United States Office of Personnel Management received "comments" from the EEOC regarding proposed changes to pre-hire questionnaires. Here are the highlights from the EEOC's perspective.

Drugs and Alcohol. The EEOC recognizes that current illegal use of drugs is not protected, so questions asking whether an applicant is currently using illegal drugs is fine. However, questions about past illegal use of drugs may elicit information that the applicant is a recovering or recovered addict - both of which are protected under the Americans with Disabilities Act. Therefore, questions about past drug use are prohibited. The same is true for alcohol.

Criminal Record. There is no law which prohibits an employer from inquiring as to a person's criminal record. However, you should proceed with caution both in asking the question and in what subsequent actions you take.

In the recent letter by the EEOC, it again took the opportunity to explain its concerns that criminal background checks may have a disparate impact on minorities. The EEOC wrote:

Excluding individuals from employment because they have conviction or arrest records may disproportionately affect persons covered under EEO laws, including African-Americans and Hispanics, thereby causing a disparate impact... Additionally, OPM should educate federal agency employers about how to assess suitability for federal or contract employment when evaluating an applicant's police record. This assessment should not result in excluding everyone with a police record from employment. Such a "blanket" exclusion would almost always fall short of satisfying Title VII.

For more information on criminal background checks, see our January 2011 e-newsletter.

Financial Record. The EEOC points out that "excluding individuals on the basis of negative financial information may disproportionately affect persons covered under EEO laws, including African-Americans and Hispanics, thereby creating a disparate impact". It cautions that such inquiries should only be made if job related and consistent with business necessity. NOTE: The EEOC's letter did not address the requirements of the Fair Credit Reporting Act and its impact on financial inquiries. To read more about an employer's obligations under the Fair Credit Reporting Act, see our article in the December 2010 e-newsletter.

By Kristen L. Brightmire, kbrightmire@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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