After a candidate has received a job offer, she may be required to undergo additional screening or tests ranging from cognitive and personality tests to credit and criminal background checks. Post-offer, pre-employment testing is allowed so long as the employer can show that the assessments are job-related and consistent with necessary functions of the business. Employers who use pre-employment screening processes to discriminate against potential employees based on race, gender, national origin, disability, religion, or advanced age may violate federal anti-discrimination laws. Screening processes must be administered consistently to all applicants, and reasonable accommodations should be made available for applicants with disabilities.
Job Skill Tests
All skill-based employment tests must be job-related and accurately reflect the qualifications required for necessary job functions. However, pre-employment testing and screening may still be improper even if these assessments exclude job candidates of a protected group unintentionally.[1] Unintentional discrimination in pre-employment screening can expose employers to liability under federal and state civil rights laws. In 2006, the Equal Employment Opportunity Commission, the federal agency responsible for enforcing many national anti-discrimination laws, won a sex discrimination case that the Commission brought against a canned meat factory that had implemented a pre-employment strength test that disproportionately excluded women from the workforce. In EEOC v. Dial Corporation,[2] management at a factory implemented programs to reduce on-the-job injuries, including a pre-employment strength test that required applicants to lift a 35-pound bar from three to six feet off the ground for seven minutes. Although women made up about half of the newly hired personnel in the years prior to the pre-employment strength test requirement, new female employees dropped down to only 15% after the test became part of the hiring process. In awarding judgment to the enforcement agency, the court conceded that the factory did not necessarily intend to discriminate based on gender, but the substantial discriminatory effect was sufficient to make the pre-employment strength test impermissible.[3]
If a pre-employment selection procedure disproportionately impacts a protected group, employers should develop different, equally effective screening processes that have less of an adverse impact. Employers are responsible for ensuring that all pre-employment tests are non-discriminatory and appropriate for the assessment of qualification for job-related functions. In addition to skills-based tests like the one at issue in EEOC v. Dial, medical examinations, drug screening, and background checks may be required for employment in certain types of jobs.
Medical Tests
Physical and medical examinations are required for some jobs where physical health is necessary to carry out required work functions. However, employees have the right to privacy in their medical histories and there are legal protections designed to ensure these rights. The Health Insurance Portability and Accountability Act of 1996 created standards for protecting the privacy of healthcare records. The law allows the disclosure of medical records to employers only with the patient’s consent and only to the extent that such information is necessary to comply with health, safety, or other standards imposed by law.[4] However, employers are limited in the degree of detail and the type of medical information they may request from a job applicant.
Employers are prohibited from considering a job applicant’s genetic information in hiring decisions, so employee medical tests may not include family history. The Genetic Information Nondiscrimination Act was passed in 2008 in response to advances in the mapping of the human genome that may one day prove integral in the development of better treatments for genetic diseases, but also raises the potential for discrimination in health insurance coverage and employment. While discriminating against a job applicant based on their genetic code may seem like something out of a science fiction movie, at one time, the majority of U.S. States had adopted “sterilization laws” under which many Americans with disabilities were prevented from having children because of assumed “defects” in their genetic codes.[5] Coerced and forced sterilization of individuals based upon perceived genetic disability was once a widespread practice in the United States, and the United States Supreme Court condoned the practice in 1927 in the now-infamous ruling in the case of Buck v. Bell.[6] While forced sterilization laws have since been repealed, discrimination based upon family history and genetic information is still a very real danger. Job candidates should be aware of their rights under the Genetic Information Nondiscrimination Act and other applicable state or local privacy laws in order to ensure that they are not subjected to illegal discrimination based upon the genetic or family history information contained in their medical records.
For Americans with disabilities, the right to privacy in medical information is particularly important for preventing unlawful discrimination in the hiring process. To avoid liability under the ADA, employers may ask appropriate disability-related questions only after a job offer has been made and must ensure that all applicants in the same job pool receive the same treatment.[7] As discussed previously, an employer cannot ask an applicant about a disability during the job application and interview process. Rather, employers may ask an ADA-protected job candidate questions regarding work-related impacts of the applicant’s disability only if the candidate voluntarily disclosed her disability in the application or interview. In some circumstances, after a candidate is selected for the job, an employer may go so far as to require a medical examination and documentation supporting the applicant’s ability to perform the job effectively and safely and to identify the reasonable accommodations the business must make for the employee.[8] Notably, however, an employer cannot require a candidate to submit to a medical exam until after a job offer is made.
Like other medical and physical examinations, drug screening is permissible at the post-offer, pre-employment stage of the hiring process. However, this issue has become complicated with the divergence of laws regarding the proper testing process, confidentiality, medical and recreational marijuana laws, and the appropriate process for rescinding an employment offer due to a positive drug test. As stated previously, a few states prohibit adverse action by an employer for lawful, off-duty conduct of an employee.[9] Even in these states, however, businesses are free to enforce drug screening as a matter of hiring and personnel management policy. Employees and job applicants living in states that permit the use of marijuana for recreational purposes are required to abide by their employers’ drug-free workplace policies or else face possible adverse action.[10]
Criminal Background Checks
In addition to physical and medical screening, an employer may require criminal or consumer background checks as a condition to an employment offer. While employers in most of the country are prohibited from inquiring about conviction history at the application and interview stage, criminal history may become relevant to a hiring decision later in the hiring process. Criminal history can typically be considered by an employer if an applicant has been convicted of crimes that directly relate to an applicant’s suitability for the job. For the most part, arrests that have not led to conviction should not be considered during hiring, but the scope of this protection varies from state to state. [11] The majority of employers surveyed by the Society for Human Resources Management in 2010 reported performing some sort of criminal background check on job candidates. Most of these employers indicated that they performed background checks to ensure workplace safety and prevent fraud or theft, but about half of the businesses were required by state or federal law to investigate job candidates’ criminal history. Jobs that often require applicants to be reviewed for criminal history include teachers, day care workers, licensed medical practitioners, and jobs involving public safety or national security.[12]
Not all motivations for reviewing criminal records are appropriate. Improper motivation for using criminal records may be present if, for example, an employer makes biased statements about criminality such as group-related stereotypes; an employer enforces criminal background check policies inconsistently, such as by requesting criminal information more often from a certain gender or race; or statistical evidence shows that an employer relies on criminal records more often for a protected class.[13] In 2012, Pepsi Beverages agreed to pay $3.1 million to settle an employment discrimination suit after the Equal Employment Opportunity Commission found that Pepsi’s criminal background check policy disproportionately affected African American job applicants. Using arrest records to deny a job to an otherwise qualified applicant may violate federal civil rights laws if an employer considered an arrest that did not lead to conviction or if the conviction was not relevant to the job.[14]
Consumer Credit Checks
Some employers hiring for jobs involving fiscal responsibility may perform credit or consumer background checks on job candidates. Under the Fair Credit Reporting Act (FRCA), employers may engage a consumer credit agency to perform consumer credit reports on job applicants and use this information in their hiring decisions.[15] However, employers must follow specific notice, consent, and disclosure requirements before pulling a consumer report. Consumer reports may contain credit scores as well, but to comply with the FRCA, the employer must notify the applicant that their credit score was obtained, what their score was, and the agency that provided the credit score.
When investigating a job applicant’s credit report in compliance with the Fair Credit Reporting Act, an employer must clearly notify the applicant that a credit report will be obtained and get the applicant’s written consent. After giving notice and receiving consent, the employer must certify with the third-party consumer reporting agency hired to perform the credit check that the notice and consent process has been followed properly and that the employer intends to use the information in the report for employment purposes only. Only after an additional certification that the employer will comply with the FCRA’s terms and conditions may the business take an adverse action against an employee based on information provided by the consumer reporting agency.[16]
Financial history is seldom a basis for evaluating applicants, but it can become relevant when applying for positions that involve handling large sums of cash or a client’s personal finances. When a job candidate’s fiscal responsibility is relevant to a hiring decision, a private employer may consider whether the candidate ever filed for bankruptcy in addition to what is disclosed in the consumer credit report. Notably, however, the federal Bankruptcy Code prohibits public employers, such as state and local governments, from considering a job applicant’s prior bankruptcy in deciding whether to hire him. Public entities are prohibited from even asking a job candidate about experiences with personal bankruptcy. Private employers, on the other hand, are free to investigate job applicants’ financial backgrounds and even refuse to hire a qualified candidate because of a bankruptcy filing. This holds true regardless of the time or circumstances of a bankruptcy, so applicants seeking work in the financial industry should be aware that their personal finances may be scrutinized.[17]
Mandatory Disclosures
After submitting a job application or resume, completing an interview, and successfully passing any other permissible pre-employment screening, a job candidate is ready for his first day at work. At this time, some jurisdictions require specific information to be disclosed to the job candidate by the employer. Common information that must be clearly and expressly disclosed to a successful job candidate on or before her first day often includes confirmation of salary or pay rate, any benefits that the new employee is eligible for, and terms for paid time off, if any. Some jurisdictions also require an employer to disclose how the job is classified under state and federal wage laws as well as the employee’s scope of employment and grounds for termination.[18]
New employees must also disclose certain information to employers, such as the employee’s social security number and other identifying information, so that the employer can keep records up to date and ready for inspections required by some local and national laws. Notably, however, private-sector cannot use polygraph or “lie detector” machines to extract information from new employees or job candidates. Under the Employee Polygraph Protection Act of 1988, polygraph tests are only allowed in limited circumstances for jobs with security companies, pharmaceutical companies, and government agencies. Otherwise, polygraph tests are prohibited in company hiring practices.[19]
Applicants who were not selected for hire are often unaware of why they were passed over, and for the most part an employer is not required to disclose if and why it decided not to hire an applicant. Beyond natural curiosity, job candidates who were not selected for employment may wish to inquire how and why an employer made a hiring decision in order to determine whether their legal rights had been violated. A company’s decision not to hire an individual could create liability for the employer under any number of state or federal laws if the decision was made on an improper or illegal basis, or if the hiring process was unintentionally biased in some way.
[1] U.S. Equal Employment Opportunity Commission. (2010, September 23). Emploment Tests and Selection Procedures. Retrieved from https://www.eeoc.gov//policy/docs/factemployment_procedures.html.
[2] 469 F.3d 735 (8th Cir. 2006).
[3] EEOC v. DialCorp, 469 F.3d 735, 740 (8th Cir. 2006).
[4] U.S. Department of Health and Human Services. (2003). OCR Privacy Brief: Summary of the HIPAA Privacy Rule. Retrieved from https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/summary/privacysummary.pdf
[5] Genetic Information Nondiscrimination Act, 42 USC 2000ff (2008).
[6] 274 U.S. 200(1927).
[7] Harrison v. Benchmark Electronics Huntsville, Inc., 593 F.3d 1206 (11th Cir 2010).
[8] U.S. Equal Employment Opportunity Commission. (1995). ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations. Retrieved from https://www.eeoc.gov/policy/docs/preemp.html.
[9] Campolongo, J. (2016). Interviewing and Hiring. In P. J. Ennis, Pennsylvania Employment Law Deskbook (pp. 197-222). Pennsylvania Bar Association. Retrieved from http://pbi.org/downloads/pubs/9158-Employ-Law-Deskbook/9158.FreeChap.pdf.
[10] Fisher & Phillips LLP. (2015). Adverse Employment Action and Off-Duty Conduct. Association of Corporate Council Annual Meeting, (pp. 1-34). Boston, MA. Retrieved from http://webcasts.acc.com/handouts/Article_258_542E_ACC_Off-Duty_Conduct_White_Paper__FINAL__8.14.15.pdf.
[11] Equal Employment Opportunity Commission. (2012). Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Retrieved from https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
[12] Society for Human Resources Management. (2010). Background Checking: Conducting Criminal Background Checks. Retrieved from https://www.slideshare.net/shrm/background-check-criminal?from=share_email.
[13] Equal Employment Opportunity Commission. (2012). Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Retrieved from https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
[14] Equal Employment Opportunity Commission. (2012). Pepsi to Pay $3.13 Million and Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans. Retrieved from https://www.eeoc.gov/eeoc/newsroom/release/1-11-12a.cfm.
[15] 15 USC 1681 et seq.
[16] Federal Trade Commission. (n.d.). A Summary of Your Rights Under the Fair Credit Reporting Act. Retrieved from https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit-reporting-act.pdf.
[17] Rea v.Federated Investors, 627 F.3d 937 (3rd Cir. 2010).
[18] Campolongo, J. (2016). Interviewing and Hiring. In P. J. Ennis, Pennsylvania Employment Law Deskbook (pp. 197-222). Pennsylvania Bar Association. Retrieved from http://pbi.org/downloads/pubs/9158-Employ-Law-Deskbook/9158.FreeChap.pdf.
[19] 29 U.S.C. 22 (1988).