Nearly every job interview will eventually require a background check, and not all checks are created equal. However, depending on the type of question asked, this normally routine procedure can be discriminatory. It is important to remember that employee background check rights are legally protected. If you believe that you have been asked inappropriate questions or faced invasive remarks pre-offer, you still have rights.
More Than Title VII
Employers are generally conversant with Title VII of the Civil Rights Act of 1964, which establishes anti-discrimination protections based on several established characteristics. However, when one is conducting a background check, one must also observe the requirements associated with other laws, such as the Fair Credit Reporting Act (FCRA). Even if no credit history is requested, the FCRA is controlling because it purports to deal with “consumer” reports and histories. Background checks must also be either completely at random or compulsory for all. To only require them for certain people can be discriminatory if based on perception of a specific trait . For example, if only potential employees of Hispanic descent were required to submit to a background check, this would be discriminatory.
It is also important to note that if employers use investigative services, prospective employees are entitled to receive notice from the employer explaining that such information may be used for employment decisions. This requirement falls under the FCRA as well. It is designed to give the prospective employee a chance to contest any allegations that they feel are spurious or irrelevant to the job.
Employee Background Check Rights in Practice
It is, unfortunately, possible that a policy designed to be random and impartial can, in fact, be discriminatory when put into practice. This is referred to in law as “disparate impact.” It can be grounds for a discrimination complaint because even though an employer might try to make their actions neutral, it may still have a discriminatory effect.
A good example of this phenomenon is to refuse to hire ex-convicts. This is a policy that can, at least in theory, be backed up as a legitimate business necessity, especially if one’s business deals in expensive or sensitive items. However, given that the U.S. justice system statistically hands out harsher sentences to people of color, this policy may very well have the effect of discriminating against certain people on the basis of race, even if the employer did not intend to do so. If an employer discriminates in any way that might run afoul of Title VII or any other anti-discrimination provision, the only defense that they can offer is that such a policy is for a legitimate job-related reason. In a disparate impact case, this defense is unlikely given that most employers will profess ignorance of such phenomena.
Contact an Employment Discrimination Lawyer
Because criminal and economic background checks are so often used, their ability to accurately assess the potential job performance of an applicant commonly comes under fire. Consulting an experienced attorney can help you receive justice if you believe you were not granted your employee background check rights when applying for an open position. Attorney A. Christopher Potts and his Charleston employment discrimination firm are happy to assist. Contact us today to set up an appointment.