HR Management & Compliance

EEOC, FTC team up to provide tips on background checks

Employers and jobseekers alike are getting more direction on employer use of background checks with the release of two technical assistance documents from the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC).

On March 10, the EEOC and the FTC copublished the documents, which are available on the agencies’ websites. The documents—Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know—explain how the agencies’ respective laws apply to background checks performed for employment purposes. The EEOC enforces employment discrimination laws, and the FTC enforces the Fair Credit Reporting Act (FCRA), which regulates how background checks are conducted and used.

The documents point out that employers need written permission from job applicants before getting background reports about them from companies that compile background information. The documents also point out that it’s illegal for employers to discriminate based on a person’s race, color, national origin, sex, religion, age (40 or older), disability, or genetic information when requesting or using background information for employment purposes, regardless of how the information is obtained.

The documents inform applicants that it’s not illegal for an employer to ask about their background as long as the employer doesn’t unlawfully discriminate. Applicants and employees are informed that if they are turned down for a job or denied a promotion based on information found in a background check, they have the right to review the report for accuracy.

The EEOC’s April 2012 guidance about the use of criminal history information has sparked questions and criticism from employers. Among other things, the guidance emphasizes the need for criminal history information to be “job-related and consistent with business necessity.”

The guidance also calls on employers to determine which offenses may signal unfitness for a job and to perform an “individualized assessment” to inform applicants or employees that they may be excluded because of criminal conduct. The guidance details how an employer’s use of criminal history information may violate Title VII of the Civil Rights Act of 1964 through disparate treatment discrimination or disparate impact discrimination.

Disparate treatment discrimination occurs when an employer treats job applicants with the same criminal history differently because of their race, color, religion, sex, or national origin. Disparate impact discrimination occurs when members of classes protected by Title VII are disproportionately excluded because an employer’s use of criminal history information is not job-related and consistent with business necessity.

On February 20, the EEOC’s 2012 guidance came under fire by a report from the U.S. Commission on Civil Rights. In December 2012, the commission convened a meeting to hear concerns about the guidance. More than a year later, it released its report without making recommendations. However, the report did include statements from commissioners who were critical of the EEOC’s guidance. Commissioner Peter N. Kirsanow, joined by vice chair Abigail Thernstrom and commissioner Todd Gaziano, criticized the EEOC’s guidance.

“The guidance is deeply flawed. . . . The foundation of the guidance is flawed because it misapplies [the] disparate impact theory by failing to appropriately compare nonoffenders to offenders and by conflating arrestees with convicts,” Kirsanow wrote. He added that the guidance discourages the use of criminal background checks and “leaves employers exposed to negligent hiring lawsuits.”

Other commissioners praised the guidance. Chairman Martin R. Castro wrote that the guidelines “do not eradicate the use of criminal background checks across the board, but they do away with across-the-board relegation of former offenders to the scrap heap of our society as it sets forth reasonable guidelines on how criminal background checks should be used to minimize discriminatory impact on minorities.”

A statement from the EEOC says the new technical assistance documents represent the first time the EEOC and the FTC have partnered to create resources addressing concerns about background checks. “The laws enforced by the EEOC and the FTC intersect on the issue of employment background checks, so this was a unique opportunity for the agencies to work together to provide user-friendly technical assistance to our stakeholders,” EEOC legal counsel Peggy Mastroianni said. “The No. 1 goal here is to ensure that people on both sides of the desk understand their rights and responsibilities.”

3 thoughts on “EEOC, FTC team up to provide tips on background checks”

  1. Background check is useless for one simple reason: statistically, people commit crimes at all ages, including elderly. Lets ask employers a question: who would you prefer to hire, a person with some background issues (most people learn from their mistakes), or a person with clean background, who will become a criminal. There is no answer other then use of a common sense. For example, someone with the record as a child sex offender could not apply for any position in school or day care system. At the same time, any school may hire a perfect applicant who will possibly become a child sex offender.

  2. What a bizarre logic. You think that people either are or were, or will be criminals. This is a fundamental mistake. Most people never will go to jail. In the other hand the offender has a defect, or he was it. And it his business to get rid of this defect.

    The employer is aware that statistically tere will be more trouble with a criminal than an innocent man. Therefore, every child knows that criminals have a harder time when he is looking for some work.

    But it does not mean that every offender is a worthless person. It happens that his unpleasant past makes that he becomes much more valuable than any innocent man, especially when he discovered how to become a good person and enjoy life.

    And this EEOT whether the FTC is another edition of “The Big Brother”. We are approaching more and more into the George Orvel world .Disgusting thing.

  3. I want to explain further what does ‘use of a common sense’ means, and I will refer to the same example, our school system. What happened to those school uniforms that cover all what supposed to be covered? Gay boys should wear the same uniforms as straight boys, all girls should cover their breasts, legs, and more. Male teachers are just men, and of course, they have the right to react as normal men, but why they should be challenged with underage girls at their workplace? Female teachers, here is something important I want to say because I am a woman myself, and I know very well that when I put some makeup and attractive clothes, I want to have male attention, because otherwise I would feel disappointed. The next step is very easy if it happens that you work with the teenage boys.
    I don’t think that all people either are or were, or will be criminals, but the truth is that without any prevention in a first place, even a good, innocent person may become criminal. Prevention is what we need to focus on, not a background checks.

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