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Background Checks & Hiring Discrimination

Using criminal history, credit checks, or other background screening to make hiring decisions can violate federal law if it disproportionately screens out protected groups — regardless of intent.

Disparate impact in screening

An employer doesn't have to intend to discriminate for a hiring policy to be illegal. If a background screening practice disproportionately excludes people of a particular race, national origin, or other protected class, it may violate Title VII unless the employer can show the practice is job-related and consistent with business necessity.

Criminal history

The EEOC has issued guidance warning against blanket policies that exclude all applicants with any criminal record. Because arrest and conviction rates are not equal across racial groups, such policies can have a discriminatory impact. Employers are expected to conduct an individualized assessment — considering the nature of the offense, how long ago it occurred, and the nature of the job.

Credit checks

Similarly, using credit history as a hiring screen can disproportionately affect Black and Hispanic applicants. Several states have restricted employment credit checks. Even where permitted, using credit history for jobs where it has no clear relationship to job duties creates legal risk.

Red flags to watch for

Rejected after a background check for a conviction that has no clear relationship to the job
Employer has a blanket "no felony" policy with no individualized review process
You were the only candidate subjected to additional screening
Credit check was run for a position that doesn't involve financial responsibility
Policy screens out a protected group at a significantly higher rate than others

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