Discrimination Allowed with Employee Screening? Well, Sometimes.

Jul 23, 2017

Discrimination is allowed with employee screening.  This shocking statement may surprise you, especially those of you who are either human resources professionals or employment attorneys.  Those individuals familiar with Title VII (of the Civil Rights Act of 1964), know that it prohibits discrimination in employment based on race, color, religion, sex, or national origin.  They also know that the Age Discrimination in Employment Act of 1967, forbids discrimination against individuals who are 40 years of age or older.

Not to be left out, the EEOC (Equal Employment Opportunity Commission) has further stated that discrimination based on gender identity or sexual orientation is covered by Title VII's protection against employment discrimination based upon sex.  Given all of the above, how can discrimination be permitted with employee screening?

An employer is able to discriminate, i.e., differentiate employee screening processes based upon job classifications.  As long as all individuals within the same job classification are treated equally, it is permitted to have different employee screening procedures by job classification.

For example, an employer might define job classes as hourly, managers, and directors.  Another categorization might be exempt and non-exempt.  An employer might decide to perform a more thorough employee screening process on exempt employees, such as also verifying educational degrees in addition to a criminal search (where non-exempt employees may only have a criminal background performed).

Employment categories can further be divided into those positions involving driving a motor vehicle and those where the employee does not drive.  Thus, a Motor Vehicle Report (MVR) can be added to the employee background check for employees that drive, versus not performing an MVR on non-driving employees.  Employers should remember, however, that even occasional driving, such as a secretary getting a cake or pizza for the office, does place the employer at risk (and given the relatively nominal cost of a Motor Vehicle Report, adding it to all employee screening reports might make sense).

So yes, employers can discriminate (differentiate) their employee screening practices based upon their job classifications.  They can have one employee screening package for one job class, and a second employee screening package for a different job classification.  However, employers must still always comply with Title VII and EEOC guidelines in their employment decisions.

Posted by: Rudy Troisi.  President, Reliable Background Screening.

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