This document summarizes a seminar on pre-employment inquiries, applications, background checks, and credit checks. It discusses key principles such as only asking questions related to job qualifications and not discriminating against protected classes. It also reviews which questions are allowed or not allowed during different stages of hiring like applications and interviews. The document provides an overview of laws governing these areas like Title VII, ADA, GINA, and FCRA and explains employer responsibilities and best practices for compliance.

1. 27th Annual Parsons Behle & Latimer EMPLOYMENT LAW SEMINAR
TOO MUCH INFORMATION:
THE USE AND MISUSE OF PRE-EMPLOYMENT
INQUIRIES, APPLICATIONS, BACKGROUND
CHECKS AND CREDIT CHECKS
J. Kevin West
Salt Lake City, Utah
TUESDAY, APRIL 28, 2015 | THE LITTLE AMERICA HOTEL
parsonsbehle.com

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Key fact: The hiring process has
become more and
more regulated in the
past 5-10 years

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 Title VII of the Civil Rights Act (Title VII)
 The Utah Antidiscrimination Act
 Age Discrimination in Employment Act
(ADEA)
 Americans With Disabilities Act (ADA)
 Genetic Information Nondiscrimination Act
(GINA)
 Fair Credit Reporting Act (FCRA)
Where Do All These Rules
Come From?

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 EEOC regulations
 EEOC guidance memoranda
 Federal Trade Commission regulations
 See handout: “Background Checks: What
Employers Need to Know”
Where Do All These Rules
Come From?

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1. Protected Categories
2. “Job-related”
3. Asking = considering
4. Disparate Impact and Disparate
Treatment
5. Burden of Proof
Key Principles

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Protected Categories
 Race
 Color
 Ethnicity
 National Origin
 Religion
 Gender
 Age
 Disability
 Veteran Status
 Sexual Orientation?
− Federal law (no)
− State law (yes)

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 Is the question, inquiry or information
directly related to a “bona fide
occupational qualification”?
 Pre-employment inquiries generally
must be job-related
– Exception: Post-offer physical/medical
examinations under the ADA (more on this later)
“Job Related”

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 If an employer requested or obtained
information, it will be presumed to
have considered it in making the
employment decision.
Asking = Considering

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Disparate Treatment: Discriminatory
conduct as to a specific individual
Disparate Impact: Conduct that has a
discriminatory impact on a group of class of
individuals.
Disparate Treatment /
Disparate Impact

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1. To make a prima facie case all a person
has to show is
 He/she is qualified for the job
 A member of a protected class
 A person in a non-protected class was hired
Burden of Proof

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2. Burden shifts to employer to show the
decision was based on legitimate, non-
discriminatory factors
3. Burden shifts back to applicant: the
reasons given by the employer are
“pretexts.”
Burden of Proof

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 Recruiting/Advertising
 Application
 Interviewing
 Evaluating
 Offer
Stages in the Hiring Process

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 May not suggest a preference; limitation or
restriction based on protected status. 42
USC §2000e-3(b)
 Word of mouth recruitment
 Walk in applications
 Deterrence of applicants
Recruiting/Advertising

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 Who is an “applicant”?
 What is an “application”?
− Mere verbal inquiry?
− Internet expression of interest?
− Filled out application form?
− Response to advertised position?
 It is important to have a policy defining who is an
applicant and what constitutes an application
Application

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 Can be “Exhibit A” in a discriminatory
hiring case
 Remember: If you asked for it, you
considered it.
Application Forms

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 Same principles apply as with
questions on application form
 Loose lips sink ships
 Following a script vs. winging it
Interviews

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Not OK
OK
OK, unless…
According to the EEOC, these
questions are…

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 Have you had a workers comp. claim?
 Marital status?
 Do you have children? How many?
 Date of birth?
 Have you been arrested?
 Are you a U.S. citizen?
 Do you have a physical disability?
 Have you ever filed for bankruptcy?
 Can you provide a photograph?
“Not OK”

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 What clubs, groups or associations do you belong to?
 Where were you born?
 What is your height?
weight?
 Do you own your home?
− How long at that address?
 Are you currently using any medications?
 Do you need any accommodations?
 Have you been treated for drug or alcohol abuse?
“Not OK”

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 Are you over 18 years of age?
 Are you legally authorized to work in the U.S.?
 What is your education, certificates, degrees,
training, etc…?
 What is your address?
 Do you currently use illegal drugs?
 Can you lift 40 pounds, climb a ladder, bend over
repeatedly, etc.?
 Are you able to perform the essential functions of the
job?
“OK”

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 Do you have any convictions?
 Do you speak/write English fluently?
 Do you have a valid drivers license?
“OK, Unless…”

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 Use of objective criteria
 Can you defend the decision in court?
 Shifting burden of proof
Evaluation and Offer

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Definition of “medical”:
“a procedure or test that seeks information
about an individual’s physical or mental
impairments or health.”
EEOC Enforcement Guidance
Dated 7/27/00
Pre-Employment Medical Tests

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“Medical”
 Vision tests
 Blood, urine, breath tests
for alcohol
 Blood pressure and
cholesterol tests
 EMG, NCV tests
 Pulmonary function tests
 Range of motion
 Psychological tests (to
determine mental
impairment)
“Not Medical”
 Physical/agility tests
 Physical fitness tests
 Personality tests
 Tests of ability to read
labels or distinguish
objects
 Polygraphs

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1. Employer may make pre-employment
inquiries re the ability of an applicant to
perform job-related functions
2. No medical examinations or pre-
employment inquiries as to whether an
applicant has a disability
General Rules:

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3. Post-offer medical tests or exams may be
conducted after a conditional offer of
employment is extended:
 Such tests are not required to be job-related
 However, such tests may not be used as a
method of screening out qualified individuals
with disabilities
General Rules

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4. Pre-or post-offer tests must be given to all
similarly situated applicants
5. Genetic testing and gathering genetic
information is prohibited. See GINA
(below)
General Rules

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 New EEOC guidance dated 4/25/12
 High priority for EEOC, as reflected
by its evolving position
 Not federal law, but “persuasive
authority” for the courts
Criminal Background Checks

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 No blanket exclusions of applicants
based on arrests or convictions
 The fact of arrest ≠ criminal conduct
 Don’t ask about convictions on job
application forms (i.e. inquire post
offer)
EEOC Guidance of 4/25/12

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1. Use of criminal history information by an
employer is presumed to have disparate
impact
-unless-
2. Employer performs a “validation study” (i.e.
a study that shows that prior criminal
conduct is related to job performance)
-or-
Burden of Proof

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3. Employer develops a “targeted screen” which
considers:
 The nature of the crime
 How long ago the crime occurred
 The nature of the job
After consideration of the above, the employer
makes an “individualized assessment”
 Allows applicant to provide more information or
explain the circumstances

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The OFCCP adopted EEOC guidance
position on 1/29/13
− Applies to Federal contractors/grantees

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 Best source: “Background Checks”
What Employers Need to Know”
(handout in booklet)
 Published jointly by EEOC and FTC
Credit Background Checks

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Fair Credit Reporting Act (FCRA)
 Applies to employers
Credit Background Checks

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FCRA Compliance:
1. Notice to applicant – on separate document
2. Applicant’s signed authorization to obtain
information
3. Employer certification to the consumer credit
agency that –
 Employer gave notice & got permission
 Will not discriminate
 Has complied with FCRA
Credit Background Checks

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4. Before adverse action –
a) Notice to the applicant with a copy of the
report
b) A copy of “Summary of Your Rights…”
c) Opportunity to explain info in report
5. After taking adverse action – additional
notice to applicant
Credit Background Checks

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 Same restrictions and principles as
with all pre-employment inquiries
 Liability may attach to both reference
source and potential employer
Reference Checks

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 Law passed in 2008
 EEOC regulations finalized in 2010
 Prohibits:
1. Use of “genetic information” in hiring or other
employment decisions
2. Requesting or obtaining genetic info
GINA

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 Info about a person’s genetic tests or
history
 Info about genetic tests of a family
member
 Family/medical history that reflects
genetic conditions
What is “Genetic Information”?

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1. When employers request information
from doctors or perform medical
exams/tests –
 Should not request or obtain genetic
information
 Notice must be given to health care
providers of GINA restrictions
Intersection of GINA and
ADA/FMLA

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Exception: If FMLA leave is requested
to care for a family member with a
serious health condition, info re family
medical history (including genetic
information) may be requested in the
certification process.

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1. Prepare written policies re non-
discrimination in hiring practices
2. Train hiring personnel
 Limit who is allowed to interview and make
sure they are carefully trained in what to
do/not to do
Managing Hiring Risks

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3. Use interview guidelines, checklists, etc.
4. Use objective applicant scoring criteria
5. Obtain EPLI insurance
6. Prepare Confidentiality policies and
procedures re:
▪ HIPAA ▪ FCRA ▪ FMLA
▪ GINA ▪ ADA
Managing Hiring Risks

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 Application Forms
 Job posting verbiage
 Job descriptions
 Interview guidelines
 Pre-employment examination forms and
policies
 Job offer letters
Conduct a “Hiring Practices”
Audit of Your Company

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 J. Kevin West
208.562.4908
kwest@parsonsbehle.com
Thank You