Legal Ground Rules for Screening Employees

Whether your organization decides to carry out a prescreen internally or to hire a third party, it is important to know the ground rules for prescreening employees without stepping across a legal line.

Can an organization screen candidates based on their criminal backgrounds?

The short answer is yes—federal law doesn’t prohibit employers from asking about a candidate’s criminal history. However, federal laws do prohibit employers from discriminating against job candidates on the basis of their criminal histories under some conditions. This is because relying on criminal histories may violate Title VII of the Civil Rights Act of 1964, as amended in Title VII:

1. Title VII prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion).

2. Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if: They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

What does this mean? In essence, it means that while one can ask about someone’s criminal history in a prescreening or selection process, if a candidate is excluded on the basis of their criminal history, the onus is on the employer to justify how the candidate’s criminal history would in fact impede their ability to carry out the job in question.

Can an organization screen candidates based on their mental or physical health?

The short answer is no. In short, one can’t ask about a candidate’s mental and physical health history during the prescreening or screening stages. According to the Americans with Disabilities Act:

• When hiring, an employer may not ask questions about disability or require medical examinations until after it makes a conditional job offer to the applicant. 42 U.S.C. §12112 (d)(2);

• After making a job offer (but before the person starts working), an employer may ask disability-related questions and conduct medical examinations as long as it does so for all individuals entering the same job category. Id. at § 12112(d)(3); and

• With respect to employees, an employer may ask questions about disability or require medical examinations only if doing so is job-related and consistent with business necessity. Thus, for example, an employer could request medical information when it has a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition, or when an employer receives a request for a reasonable accommodation and the person’s disability and/or need for accommodation is not obvious. Id. at § 12112(d)(4).

What does this mean? In a nutshell, it means that prescreening on the basis of a candidate’s mental or physical health puts one at risk of violating the Americans with Disabilities Act. It also means that employers who plan to assess candidates mental and/or physical health (after a job offer) must, under all circumstances, do so for all employees without exception. Otherwise, they may violate the Americans with Disabilities Act.

Can an organization screen candidates based on their credit histories?

Some employers believe that a candidate’s credit history is relevant because it says a lot about who they are. After all, someone with a lower than average income can have a FICO score in the high 700s while someone with a higher than average income may have a score in the 400s. In short, extremely high or low FICO scores often say more about the person—their level of responsibility and organizational skills—than their wealth. However, employers who wish to access a credit score must adhere to several rules. According to the Fair Credit Reporting Act (FCRA), employers must get an applicant’s written consent before accessing a report, give a warning if they plan to reject a candidate on the basis of their credit history, and provide an official adverse action notice if credit history is ultimately the grounds for not moving forward with a hire. In several states, however, including California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington, an applicant’s credit history cannot be used as a hiring factor.