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Background check: Is your process Discriminatory?


While a background check can provide valuable insight on your applicants, it’s vital that these investigations and subsequent hiring decisions are handled with great care to comply with applicable laws and EEOC guidelines. If mishandled, your business could face hefty penalties.

Here’s a quick rundown of employment background check blunders you’ll want to avoid.

Non-compliance of policies with anti-discrimination laws

In 2012, Pepsi Beverages agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination, according to the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC ruled that the criminal background check policy formerly used by Pepsi unfairly discriminated against more than 300 African American applicants who had been arrested and had pending criminal charges. The plaintiffs were denied a permanent job, even if they’d never been convicted of an offense. The EEOC deemed the background check policy a violation of Title VII of the Civil Rights Act of 1964.

If you’re performing pre-employment background checks, you must have a thorough understanding of the related and applicable laws; otherwise you could be setting your company up for costly litigation. If you aren’t well-versed in employment law, you should consider working with an employment screening company or legal counsel who can help guide you in the right direction.

Social media as a screening method

There’s no doubt that professional social media sites, like LinkedIn, have proven to be invaluable recruiting tools for employers.

However, that’s not to say that all social media channels should be used as a background check tool.

In fact, any personal information gleaned on candidates from these sites – such as race, gender, national origin, color, religion, age, disability or genetic information – should not be used to make employment decisions, according to the EEOC.

As a best practice, employers should keep their focus on professional recruiting sites and avoid looking at candidates personal profiles on other social sites altogether.

Lack of verification of background check data

Not all screening services are created equal. Many websites claiming to perform criminal background checks don’t contain accurate and complete data.

Many people share the same names and even the same birthdates. Employers should obtain multiple “identifiers” such as full name and previous names, date of birth, Social Security and driver’s license numbers when screening an employee. Some applicants with a criminal history may attempt to use a relative’s information in an attempt to circumvent the system.

A good employment background check service will verify these details when performing a background check in order to provide accurate and complete background information.

Poor evaluation of screening results

The National Association of Professional Background Screeners (NAPBS) recommends that employers develop a written screening policy for the use of background checks obtained from a Consumer Reporting Agency (background screening service) that is regulated by the Fair Credit Reporting Act (FCRA).

Applicant criminal and driving histories, credit reports, and education and license verifications are all subject to the FCRA. Any negative information that causes an employer to take adverse action against an applicant must be reported to the employee, since under the auspices of the FCRA the candidate has an opportunity to correct or challenge the negative information.

When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that any exclusion is important for the particular position. Such exclusions may create a disparate impact based on race in violation of Title VII. Keep in mind that each applicant should be assessed on a individual basis.

Don’t automatically disqualify people who may have made a mistake in the past. Ask yourself: Does a conviction on a fairly minor charge 20 years ago really matter in relation to the job sought?

Leave it to the professionals

Background checks should only be conducted by professionals. Companies that use screening services as a component of the hiring process should make sure they’re using a trustworthy service.

If you’re screening an applicant, you must be compliant with all laws to be compliant on social media recruiting, data verification, and evaluation of screening results.

Get our e-book, HR Compliance: Are You Putting Your Business at Risk?, to learn how to manage the ever-changing HR compliance landscape so that you can safeguard your company.