Recent developments in the way that the EEOC analyzes employment discrimination cases based on unfair background checks has set guidelines for identifying violations of the law. The EEOC recently reemphasized that employers are prohibited from discriminating in the hiring process on the basis of race, color, national origin, sex, religion, age or disability under Title VII. That federal protection extends to workplace background checks.

EEOC guidelines stress that background checks could introduce either disparate treatment discrimination or disparate impact discrimination in violation of Title VII. However, employees should note that employers are not prohibited from administering backgrounds checks. The guidelines also stress several foundational principles that could help determine whether a background check is in violation of the law.

The question remains how does an employee seeking work spot a discriminatory background check? Though some forms of discrimination found in background checks may be hard to decipher, here are a few tips that can help.

Title VII and Pre-Employment Inquiries

Often, a background check is distributed to a prospective employee before an official hiring. Title VII covers such pre-employment inquiries, and the EEOC has outlined several details on the way that law handles them.

According to the EEOC, an employer has two ways of checking in to a person’s background before hiring: credit history reports and criminal background reports. Either of these reports must be obtained only with an employee’s permission. Employees have the right to refuse to allow the reports, but refusing could run the risk of losing the hiring opportunity.

Additionally, any background report must be accompanied by a notice of rights outlining contact information for the company conducting the report. An employee has the right to contact the reporting company to address inaccuracies in background reports. If a background check is carried out with the notification of rights or without the express permission of the employee, it could be in violation of the law.

When is failure to hire or termination based on a background check illegal?

Any employer has the legal right to terminate an employee or fail to hire an applicant based on negative information in a background check unless doing so violates Title VII or other federal or state laws.

For instance, if the termination or failure to hire is based on negative information related to race, color, national origin or any other protected categories, the adverse employment action is illegal.

Under disparate treatment liability, the negative information can be used to treat one employee different from other similarly situated employees based on membership in any one of the protected categories. For instance, an employer could refuse to hire an African-American man with negative criminal history while continuing to hire white men with negative criminal history. This constitutes discrimination based on race.

Under a disparate impact theory of liability, it is illegal for employers to enforce a policy or pattern regarding background checks that is discriminatory in nature or has a discriminatory effect in the workplace. For example, a relatively neutral policy of using background check to screen out every prospective employee with an arrest record could have a disparate impact on applicants of color.

Proving Disparate Treatment Based on a Background Check

In order to bring a claim under Title VII, it’s necessary to prove certain elements that serve to raise a rebuttable presumption of discrimination. First, the employee must prove that he or she is a qualified worker who belongs to one of the protected groups noted in the statute. Next, the employee will need to show that he or she experienced adverse action based on membership in that group.

In the context of a discriminatory background check case, the adverse action would be failure to hire or promote, or it could be a decision to terminate someone, all due to  negative information in a background check.

An employee would need to show that, whatever the adverse action taken against them, the employer did not take the same action against others employees with negative background check information. This tends to prove that the firing, hiring or lack of promotion was based on membership in a protected group in violation of Title VII.

At this point in a case, courts then give employers a chance to prove that, although adverse action was taken based on the negative information, it was for some legitimate business reason other than discrimination. If the employer is successful, it’s possible to avoid liability for Title VII violation.

Proving an Illegal Background Check

Employee could also show that the background check itself is illegal based on the way it is administered by an employer. Again, employees must be allowed to give permission or refuse the use of a background check. Also, they must be provided with a notice of rights disclosure that is sufficiently worded according to law.

If information in the background check is to be used to refuse hiring or to fire a worker, certain actions the employer takes may also be illegal. An employer must let employees know that the adverse action taken is based on information in the report, and employers must present the actual report for an employee’s review, giving the employee time to dispute information in the report if necessary. Failure to take these steps could result in liability.

Use of the content of a background check could also be illegal under some circumstances. For instance, arrest records are generally not permitted as grounds for termination or job denial. However, an employer is allowed to consider the reasons for an arrest as part of the employment decision making process, if those reasons are related to the job.

If You Have Experienced Adverse Action Based on a Discriminatory Background Check…

If you have experienced adverse action based on a discriminatory background check, your employer may be liable for damages. Willful violation of the laws on background checks can trigger actual and punitive damages as well as statutory penalties. You’ll need an experienced and capable employment discrimination attorney familiar with all the EEOC guidelines and caselaw on discriminatory background checks. Know your rights, and rely on the best legal counsel available to get the justice you deserve.