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What HR Should Know About EEOC-Compliant Background Checks
Tim Gordon
December 10 2024
The Equal Employment Opportunity Commission (EEOC) plays a critical role in shaping the hiring and employment practices of businesses across the United States. HR professionals must understand the EEOC’s rules. This knowledge helps them comply with the law, reduce legal risks, and support fair hiring practices. Below, we’ll cover what HR professionals should know about the EEOC and its impact on background checks and hiring decisions.
What is the EEOC?
The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcing anti-discrimination laws in the workplace. It ensures compliance with laws like Title VII of the Civil Rights Act of 1964. It also covers the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
These laws protect job applicants and employees from discrimination. This includes discrimination based on race, color, religion, sex, national origin, disability, genetic information, and age.
For HR professionals, this means an employment decision must comply with federal laws to prevent bias. The EEOC requires fairness and consistency in background checks and hiring decisions. This helps prevent discrimination complaints.
Keep reading: Dive deep into background check compliance with this in-depth guide.
EEOC Investigates Discrimination
One of the EEOC’s primary functions is investigating workplace discrimination complaints. These complaints arise from various practices, including recruitment, job advertising, and promotions. Employers should avoid using language in job postings that might exclude protected groups. This includes specifying an age range for candidates or adding unnecessary requirements.
Asking for a credit report or driving records for jobs where these are not pertinent can lead to claims of discrimination. This can create legal issues for employers. It’s best to only request information that is relevant to the job.
HR professionals must post notices in clear places. These notices inform applicants and employees of their rights under anti-discrimination laws. These notices are a simple yet crucial step in maintaining EEOC-compliant practices.
From an expert
Implement Anti-Retaliation Policies
It is important to understand and implement anti-retaliation policies. When employees file a complaint with the EEOC, they are protected from retaliation by their employer. This means HR must ensure that no adverse actions—such as demotion, termination, or harassment—are taken against employees who engage in protected activities.
— Bryan Driscoll, HR Consultant, Bryan J. Driscoll, JD, LLC
From an expert
Understand the Pregnancy Discrimination Act
The EEOC enforces the Pregnancy Discrimination Act. The Act was enacted in 1978 as an amendment to Title VII. It banned workplace discrimination based on pregnancy. Under the Act, covered employers are not allowed to discriminate against women based on pregnancy, childbirth, or any other related medical condition.
— Fred Winchar, Founder, Certified HR Professional, MaxCash
Do Background Checks Have to Be EEOC Compliant?
Yes. The EEOC offers guidance on the use of employment background checks. Its goal is to ensure they do not lead to discriminatory practices. While background checks provide valuable information about a candidate’s qualifications, misuse of this information can result in legal exposure.
For example:
- Immediately denying candidates based on a criminal record violates EEOC guidelines. Employers should consider the nature of the offense, how long ago it occurred, or its relevance to the job.
- Social media screening is permitted, but be careful. Partner with a provider to prevent exposure to protected-class information.
- The EEOC prohibits inquiries about a candidate’s disability or family medical history during a background check.
To comply, ensure any information gathered is consistent with business necessity and directly related to the role’s requirements.
Keep Reading: A Primer on Disclosure and Authorization Forms
Best Practices for EEOC-Compliant Background Checks
Tailor Background Checks to the Role
The EEOC advises that all inquiries, including those related to criminal records, must relate specifically to job responsibilities. For example, a job that needs access to sensitive financial information may require a credit report check. However, this may not be needed for a warehouse position.
Document the Decision-Making Process
To avoid complaints, employers should keep records of how they use information from background checks when hiring. This ensures that decisions are transparent and based on objective criteria.
EEOC and Pre-Employment Screening
Pre-employment screening, including background checks, is a critical step in the hiring process. However, employers must navigate these screenings carefully to avoid unintended discrimination.
Criminal Records
Employers should look at the type of offense and how serious it is. They should also consider how it relates to the job. Instead of denying all candidates with convictions, they should assess each case individually.
Credit Reports
You should only check a candidate’s financial history if it is relevant to the job.
Social Media
Looking at a candidate’s social media profiles can offer useful insights. However, decisions based on this information must follow federal laws. It is important to avoid making assumptions about protected characteristics.
Working with a background check provider familiar with EEOC-compliant practices can help streamline this process and ensure compliance.
Extra reading: Many states and cities have passed ban the box laws.
The EEOC Process
If a job applicant or employee believes they experienced discrimination, they can file a complaint. This complaint is submitted to the Equal Employment Opportunity Commission. This complaint process includes:
1. Filing a Charge
The individual files a charge of discrimination.
2. Investigation
The EEOC investigates the claim to determine if there is reasonable cause to believe discrimination occurred.
3. Resolution
Depending on the findings, the EEOC may attempt mediation, file a lawsuit on behalf of the complainant, or dismiss the claim.
Employers can avoid complaints by proactively ensuring all policies, especially around background checks, are EEOC compliant.
Keep Reading: How Applicant Advocate Programs Protect People & Businesses
Why EEOC Compliance Matters
Non-compliance with the EEOC can lead to significant consequences. These may include financial penalties, damage to reputation, and loss of trust from employees and applicants. By adhering to background check laws and ensuring employment decisions are fair, HR professionals:
- Reduce the risk of discrimination claims
- Create a more inclusive hiring process
- Enhance their organization’s reputation as an equal opportunity employer
From an expert
Document Performance Issues Rigorously
Be extremely vigilant about properly documenting performance issues and following proper disciplinary procedures. The EEOC scrutinizes termination and discipline decisions to ensure there is no evidence of discrimination.
Have clear, consistent documentation of performance problems and efforts to coach the employee. It will be much easier to defend your decision. The EEOC presumes discrimination, and the burden is on employers to prove otherwise.
— David Fritch, Attorney, Fritch Law Office
How to Ensure Compliance
Stay Updated on Laws
Laws and regulations, including background check laws, vary by jurisdiction and are subject to change. Regularly review federal, state, and local requirements to ensure compliance.
Train Your Team
HR teams should understand EEOC regulations, including how they apply to background checks and hiring practices.
Partner with Experts
Collaborating with experienced background check providers can help implement screenings that align with EEOC guidance.
From an expert
Promote Diversity and Inclusion
The EEOC focuses on preventing discrimination and promoting diversity and inclusion in the workplace. This includes not just hiring practices, but also creating a welcoming and inclusive culture for all employees. I recommend ensuring fair and unbiased recruitment processes and giving equal opportunities to candidates from different backgrounds. I also encourage the implementation of training programs to educate employees on diversity and inclusion.
— Daniel Cook, HR / Marketing Executive, Mullen and Mullen
Choose a Trusted Background Check Partner
The Equal Employment Opportunity Commission (EEOC) plays a vital role in protecting workers and ensuring fair hiring practices. For HR professionals, staying informed about EEOC-compliant practices is essential for fostering a fair and legally sound workplace.
By tailoring screening practices to be consistent with business necessity, documenting decisions, and staying updated on federal laws and local regulations, HR professionals can navigate the complexities of compliance while contributing to an equitable hiring process.
When in doubt, consult with a trusted background check partner to ensure your hiring practices align with EEOC requirements.
Read More: How your background screening partner should be keeping your data safe
About Tim Gordon
Tim Gordon, InfoMart’s Chief Compliance Officer, is a seasoned, knowledgeable professional in the background screening industry dedicated to driving InfoMart’s operations efficiently and profitably. Tim utilizes his extensive history in multiple positions across the company to oversee the processing of InfoMart’s core service offerings. He joined InfoMart in 2004; his tenure at InfoMart has been one of efficiency, communication, and continued innovation. With over a decade of experience running InfoMart’s compliance team, Tim is instrumental in proactively updating company regulations to keep InfoMart ahead of legislative changes. He previously sat on the Background Screening Credentialing Council with PBSA, where he helped oversee the accreditation program. Now, he serves as the Chair of the Professional Background Screening Association, where he helps steer the screening industry and shapes compliance initiatives globally.
About InfoMart
InfoMart has been revolutionizing the global background and identity screening industry for 30 years, providing businesses the information they need to make informed hiring decisions. They develop innovative technology that modernizes talent onboarding, including a first-to-market biometric identity authentication application and a verified sanctions search. The WBENC-certified company is a founding member of the Professional Background Screening Association, and they have achieved PBSA accreditation in recognition of their consistent business practices and commitment to compliance with the FCRA. The company is dedicated to customer service, speed, and accuracy, and it has been recognized for its success, workplace culture, and corporate citizenship with over 45 industry awards. To Get the Whole Story on InfoMart, please visit www.InfoMart-USA.com, follow @InfoMartUSA, or call (770) 984-2727.