Keeping Background Checks Legal Under EEOC Guidance

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eeoc background checks Keeping Background Checks Legal Under EEOC Guidance

The EEOC (Equal Employment Opportunity Commission) and the FTC (Federal Trade Commission) published a joint publication on employment background checks in 2014. The guide explains the rights and responsibilities of employers in addition to those of applicants.

The publication addresses three different phases of background checks—before getting the background information, using background information, and disposing of background information.

Before You Get Background Information

The EEOC emphasizes that the most important point is to treat everyone equally.

It is illegal to check the background of applicants and employees when a decision is based on:

  • Race
  • National origin
  • Color
  • Sex
  • Religion
  • Disability
  • Genetic information
  • Age

The EEOC also recommends if you happen upon any of the aforementioned information, don't use it to make an employment decision.

Using Background Information

The EEOC recommends, "any background information you receive from any source must not be used to discriminate in violation of federal law."

This means:

  • Apply the same standards to everyone, regardless of background factors
  • Be careful when basing employment decisions on factors that may be more common among certain backgrounds, whether race, age, sex, etc.
  • "Be prepared to make exceptions for problems revealed during a background check that were caused by a disability."

Disposing of Background Information

The main takeaway: "Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later."

You can read the full publication, Background Checks: What Employers Need to Know on the EEOC site.

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