EEOC Warns Employers of Increase in Discrimination Lawsuits Based on Background Checks

By Thomas Ahearn, ESR Staff Writer

As a recently filed lawsuit alleging one of the largest management consulting firms in the world conducted discriminatory background checks against African-Americans and Latinos shows, employers need to fully understand the U.S. Equal Employment Opportunity Commission (EEOC) policies regarding the use of background checks during the pre-employment screening process – or face the consequences in court.

Due to an increase in discrimination lawsuits such as this, the EEOC has decided to warn employers about background check practices that could get them in trouble. The agency designed a program to combat discriminatory practices tied to background checks called E-RACE (Eradicating Racism And Colorism from Employment) after recently noticing a steep climb in complaints from job applicants who claimed they were unfairly excluded from employment because of information – such as criminal records and poor credit ratings – that appeared on background checks. African-American and Hispanic males in particular, who according to statistics usually have higher arrest rates and lower credit scores than white males, were able to show the EEOC that the criteria used during background checks had a negative impact on their hiring opportunities.

The EEOC has defined two background check practices in particular that have caused – and will continue to cause – the largest legal risk for employers:

  • Blanket policies against hiring anyone with a criminal record or poor credit score.
  • Failing to show the correlation between background checks and the job itself.

According to the EEOC, even if the agency takes a discrimination charge that does not necessarily mean that the government is accusing an employer of discrimination. It is simply the EEOC’s job to investigate the matter to determine whether there is reasonable cause to believe that discrimination has occurred if applicants or workers charge that an employer has allegedly discriminated against them.

In addition, according to the “Employers” section of the EEOC website, the agency enforces Federal laws prohibiting employment discrimination that protect employees and job applicants against employment discrimination when it involves:

  • Unfair treatment because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
  • Harassment by managers, co-workers, or others in the workplace, because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
  • Denial of a reasonable workplace accommodation that the employee needs because of religious beliefs or disability.
  • Retaliation because the employee complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.

The EEOC and the courts do recognize that some information uncovered in background checks does provide insight on an applicant’s suitability in certain fields of employment. These instances could include jobs in which applicants would have close contact with customers, handle cash, drive vehicles, and deal with minors.  Employers need to show these correlations between background checks and the suitability for the given job, and also ensure that their background check process does not routinely, even if unknowingly, give preference to white applicants while excluding African-Americans and Hispanics.

For more information about EEOC policies regarding discrimination during background checks for employment, visit Employment Screening Resources (ESR), a national pre-employment screening firm providing background checks, at