What Employers Need to Know about the EEOC

By Michael Klazema on 8/28/2019

The Equal Employment Opportunity Commission (EEOC) is a federal agency that monitors and enforces laws against civil rights discrimination in the workplace. Employers must be aware of the laws, regulations, and guidance that the EEOC enforces and abide by those requirements. Some of those requirements apply to background checks and the hiring process. Learn how compliant EEOC background checks should look.

It is not illegal for employers to seek information about their candidates’ backgrounds. While some areas have laws that either delay the background check process (ban the box) or prohibit certain checks (such as credit history), it does not count as discrimination for employers to require background checks for prospective employees.

What compliant EEOC background checks cannot do is lead to employer discrimination “based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older).” Employers should also not ask questions about any of these areas on their job applications. Background checks that reveal this information—including certain social media background checks—risk violating EEOC guidance and bringing about expensive lawsuits.

In addition, the EEOC instructs employers to:

  1. Apply the same standards to every candidate. This requirement means that employers should decide ahead of time which background checks they wish to run for a job role. Then, each candidate or finalist for that job should go through the same background check process regardless of age, race, ethnicity, and other factors. Employers should also decide which types of background check findings will lead to disqualification from job consideration. You cannot reject a person of color for his or her criminal history if you would not reject a Caucasian applicant with the same or a similar criminal history.

  2. Avoid disparate impact. Said another way, avoid making background check-based employment decisions that disproportionately affect “individuals of a particular race, national origin, or another protected characteristic.” So, if a certain criminal record is disproportionately common among one race over another, try to avoid making that type of criminal record a bar to employment. There are exceptions: you can disqualify candidates based on information that is specifically related to the job at hand and can be argued to “accurately predict who will be a responsible, reliable, or safe employee.”

  3. If there is a possibility that a problem found through a background check was caused by a candidate’s disability, give that person a chance “to demonstrate his or her ability to do the job, despite the negative background information.” 

The EEOC requires employers to keep employment-related records—including application forms and background check documents—"for one year after the records were made, or after a personnel action was taken, whichever comes later.” Educational institutions, government agencies, and large federal contractor must keep these records for two years. This requirement applies whether the candidate was hired or not. If a candidate files an EEOC discrimination lawsuit, the employer must preserve the records until the matter is settled. 

Finally, compliant EEOC background checks must also follow the Fair Credit Reporting Act (FCRA) to the letter.

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