Date of Birth Information, Age Discrimination and Background Checks

By Les Rosen, Employment Screening Resources

Most authorities agree that any information tending to reveal a job applicant’s age should not be requested on an employer application form or during an oral interview. Asking for date of birth during the selection process could violate the federal Age Discrimination in Employment Act of 1967 as well as various state civil rights laws. Asking for date of birth tends to deter older applicants from applying.

If the application material contains date of birth information, the inference is that a firm may be methodically denying consideration of older workers. Many states have rules that prohibit an employer, either directly or through an agent, from seeking or receiving information that reveals date of birth and age before an offer is made. For example, the California Pre-employment Inquiry Guidelines by the California Department of Fair Employment and Housing (DFEH) lists specific age questions that cannot be asked. (See: http://www.esrcheck.com/services/legal_illegal_questions.php)

However, special problems are faced when an applicant’s date of birth is not available for background screening. When researching court records, the date of birth is probably the most important factor needed to identify an individual. Many court records do not contain Social Security Numbers. In fact, in some jurisdictions, a criminal search cannot be conducted without a date of birth. It is also needed in some states in order to obtain a driving record.

Under the Federal Age Discrimination Act, there is not an absolute prohibition against asking for date of birth or age. That is a common misconception among employers. In fact, the EEOC has specifically ruled that asking for date of birth or age is not automatically a violation of the act. However, the EEOC ruling indicated that any such request would be closely scrutinized to ensure that the request has a permissible purpose. The EEOC also indicated that the reason for asking for date of birth should be clearly disclosed so that older applicants are not deterred from applying.

According to a Fact Sheet prepared by the EEOC in 2008:
“Pre-Employment Inquiries:

The ADEA (Age Discrimination in Employment Act) does not specifically prohibit an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.” See: http://www.eeoc.gov/facts/age.html

This is consistent with earlier regulations from the EEOC in 1981 (See 29 Code of Federal Regulations Part 1625).

In order to avoid any liability for age discrimination, some employers send information to the screening firm only post-offer in order to wait to obtain date of birth after the offer has been made. Another method that has been tried is a “date of birth workaround” where somehow the job applicant provides the date of birth directly to the screening firm, perhaps though an 800 number. Not only are these procedures not required by law, but it complicates and delays the background check. It creates an administrative burden for most employers to coordinate giving offers, then collecting the date of birth and then transmitting it to a screening firm, or asking applicants to perform the task.

A better solution is to request date of birth information on the screening firm’s form, and not on any employer form at the same time the original application is filled out. Furthermore, the applicant release forms should not be made available to the person or persons with hiring authority in order to avoid any suggestion that age information was used in any way during any step of the hiring process.

It is recommend that employers keep the screening forms and reports separate from the employee’s personnel file or application papers. Employers can have someone in the office physically separate the screening firm’s form from the application so there is no question that a decision maker has not viewed the date of birth before the applications are reviewed.

In addition, to further protect the employer, the consent form used by the screening company should have a statement that the information is used for identification only and that without such information the screening process may be delayed.

As technology advances, the question over how to handle date of birth may become less of an issue. New online options are available where an applicant can supply the date of birth as part of an electronic and paperless screening system where only the screening firm will be able to see it. That protects the employer completely from having any knowledge of date of birth, and facilitates the screening process.

To address any concerns an employer may have, an employer can consult their legal counsel or seek advice from their attorney or contact the appropriate local or state authority or federal EEOC office.
For more information on background checks and employee screening, see: Employment Screening Resources.