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Are Background Checks Legal?

Background checks have been a hot topic for debate over the last few years. Justifiably, whenever there are a large number of crimes being committed in the marketplace, its reasonable to take a second look at our hiring protocols, and reevaluate if the system is doing it’s job. I realize that there are competing opinions on this topic and I’m not here to voice mine, but with the controversy surrounding this matter I wanted to address a question that has become more prevalent as of late. Are background checks legal?

So, Are Background Checks Legal?

The short answer is Yes. They are. With the exception of certain restrictions regarding medical information, it is legal for an employer to ask about an employee’s or applicant’s background, or to require a background check.

Here’s the thing, though; any time you’re using background information to make employment decisions, compliance with federal laws that protect employees and applicants from discrimination is absolute. These laws are enforced by the Equal Employment Opportunity Commission (EEOC) and aim to protect against discrimination based on sex, disability, color, genetic information, race, age and national origin. No matter what, employers must be treating each employee or applicant equally. It is illegal to check the background of applicants and employees when the employers decision is based on one of the previously mentioned discriminatory items. A perfect example of this would be for an employer to only ask individuals of a certain race about their criminal records. This would be considered evidence of discrimination.

Additionally, don’t ask for genetic information unless absolutely necessary. It is only in rare circumstances that this information would be needed. Even if that information was provided by your employee or applicant, you shouldn’t be using it to make your employment decisions.  Be sure not to ask any medical questions prior to making a conditional job offer. If the individual has already accepted and started the job, refrain from asking medical questions unless you have evidence that the individual is unable to do the job properly or poses a safety risk due to a medical condition.

If you would like more information about the Genetic Information Nondiscrimination Act (GINA), CLICK HERE.

Using Background Check Information

Regardless of your source, any background information that you receive must NOT be used to discriminate in violation of federal law. That being said, you should:

  • Make sure that you’re applying the same standards to everyone, regardless of their age, sex, race, color, national origin, religion, etc..
  • Be sensitive to basing employment decisions on background issues that may be more common among people of a certain race, color, national origin, sex, or religion, etc..
  • Be prepared to make exceptions for issues on a background check that were caused by a disability. For example: If you are inclined to decline an individuals application due to a problem caused by a disability, allow them to demonstrate their ability to do the job – regardless of negative background information – unless it would cause significant operational or financial hardship.


NOTE** When running background checks through a company that is in the business of compiling background information, you must be compliant with the Fair Credit Reporting Act (FCRA). The Federal Trade Commission (FTC) enforces the FCRA. To learn more, CLICK HERE.