Facts About Age Discrimination And Pre-Employment Background Checks
By Khodadawd “Cody” Farzad
One of the most frequent questions we receive when educating our clients and prospective clients about the pre-employment background screening process is, “I can’t know the full dates of birth of my applicants before they are regular employees, and I noticed that on your background release form you ask for a full date of birth. How are we legally able to ask for this information from the applicant without being in violation of Age Discrimination laws?”
We inform the client that they aren’t the ones requesting this information; instead, it’s us making that request, as the Credit Reporting Agency (since the release form is a CRA document). In order for a pre-employment background check to be done correctly, a CRA must have the complete and full date of birth of the subject of the background investigation because County Criminal Records (Felonies and Misdemeanors) are stored (and retrieved) only by first, middle and last name and full date of birth. Additional verification often involves the Social Security number and other information. Therefore, if a date of birth is not obtained from an applicant, it may be impossible to verify whether a particular criminal record refers to that individual.
To help avoid a potential dilemma the Equal Employment Opportunity Commission (EEOC) in July of 1999 clarified when an employer can ask for a full date of birth, and wrote in an opinion letter, “A request for date of birth or age on an employment application is not, in itself, a violation of the Age Discrimination Employment Act”.
The ADEA includes verbiage which carefully acknowledges that such inquiries may deter older workers from applying for employment or may otherwise indicate intent to discriminate based on age; therefore, a request for age information may be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather that a purpose prohibited by the ADEA. In our case the “lawful purpose” is to obtain public criminal records to determine if the applicant is suitable for employment. The greater need of the company to make safe hiring practices outweighs the potential negative impact of the necessary request for full date of birth when requested by your CRA.
The bottom line is simple: to ensure a safe workplace, as employers are required to do under both State and Federal law, you need to know you aren’t hiring dangerous criminals. The only way to do that is to conduct a thorough background investigation through a licensed CRA, and any competent contractor doing so will need the full date of birth from the individual being investigated.
EmployersChoiceOnline.com is not a law firm, and information provided by EmployersChoiceOnline.com should not be deemed as legal guidance or opinion. If you have additional questions about this, we invite you to consult with your Labor and Employment Attorney.
