Employers using background checks have certain obligations pursuant to the Fair Credit Reporting Act when obtaining financial or criminal background information about an applicant or employee from a third party. In addition, employers using bright line tests that exclude applicants having arrest or criminal records have exposure to liability for discrimination. The EEOC has issued regulations regarding background checks to prevent disparate impact claims under Title VII of the Civil Rights Act of 1964. The EEOC, which lost a background check case in August 2013 because of unreliable statistical data, suggests that job exclusions based on an applicant’s criminal history should be job-related and consistent with business necessity. Employers who consider the nature of the job, the nature and seriousness of the offense, and the length of time since the offense occurred may decrease their exposure to liability for an adverse employment action taken on the basis of information learned from a background check.
