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Background Checks and Conditional Job Offers (answered by EBG)
kwhe2
Joined: Sep 18, 2002 Posts: 2
Posted: 2002-09-18 10:40
What checks can be done pre-conditional job offer and which require an offer? If a background check requires your date of birth for information is it illegal to request this prior to an offer?
nork3
Joined: Feb 12, 2002 Posts: 3876
Posted: 2002-09-18 11:10
You can ask for any information you want prior to making a job offer, including race, sex, date of birth, veteran status, social security number, etc. The prohibition is against using any of this information as a basis for making an employment decision.
Ask for the info, check the references and background before making an offer if you can. If not, you can make the offer conditional on satisfactory background/reference checks - it's not the preferred way simply because of the somewhat sticky situation of having to explain why you're withdrawing the offer. It's always easier to not make an offer than it is to withdraw one.
Remember that you have to comply with the Fair Credit Reporting Act requirements of notifying your candidate of derogatory information that led you to not extend an offer (source of the information, for example).
You might want to check out the website of a background check firm for more information on the legalities of all this. www.avert.com would be a good place to start.
ForumHosts Legal Forum Host
Joined: Jul 09, 2002 Posts: 825
Posted: 2002-09-18 13:41
Carl's response, I think, requires just a bit of commentary. He writes:
You can ask for any information you want prior to making a job offer, including race, sex, date of birth, veteran status, social security number, etc. The prohibition is against using any of this information as a basis for making an employment decision.
This observation, of course, raises the following question (which a rejected applicant suing for discrimination might raise for the jury's consideration):
if you (the employer) weren't going to use the information (identifying the applicant as a member of a protected class), why did you ask for it? Now, you may explain that the company that performs your credit check wanted it. The plaintiff may offer a different explanation, and ask the jury to decide.
kwhe2
Joined: Sep 18, 2002 Posts: 2
Posted: 2002-09-18 13:50
Thank you for the reply. However, since posting I found some additional info.
Previous Post:
"You can ask for any information you want prior to making a job offer, including race, sex, date of birth, veteran status, social security number, etc. The prohibition is against using any of this information as a basis for making an employment decision."
This is untrue in the state of California. The California Fair Employment and Housing Act actually prohibits employers from asking for this information prior to an offer.
nork3
Joined: Feb 12, 2002 Posts: 3876
Posted: 2002-09-18 14:48
Can you give a quote or cite on that?
Hatchetman
Joined: Sep 13, 2001 Posts: 1609
Posted: 2002-09-18 18:34
Carl, California Government Code Section 12940(d) -- as a regulatory expression of the Fair Employment and Housing Act -- states that:
It is an unlawful employment practice, unless based upon a BFOQ, for...
"For any employer...to make any non-job-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or sexual orientation, or any intent to make any such limitation, specification or discrimination."
This isn't quite what Khe may be referring to in his or her post but there is no other similar provision in the regulations that addresses inquiries. And this sub-section certainly does not prohibit the mere inquiry on an application of the applicant's sex, birth, race, etc. as long as it's not within the inquiry's intent or result to limit, specify or discriminate as to race, sex, etc.
I think as you and EBG noted inquiring can result in charges of discrimination if there is no BFOQ to warrant an inquiry on these factors -- otherwise why inquire? But FEHA doesn't prohibit the mere inquiry and, in fact, allows it at the pre-offer stage if there is a BFOQ warranting the inquiry.
It all may be semantics. Certainly a pre-offer inquiry on sex, etc. that isn't job-related and part of a BFOQ would be suspicious whether or not it was intended to "illegally" discriminate or resulted in prohibited discrimination. That's probably why employers don’t ask the questions about these matters until after the offer and the hire.
Hatchetman
Joined: Sep 13, 2001 Posts: 1609
Posted: 2002-09-18 18:39
Let me add that in my post above I meant to inlcude in the description of prohibited inquiry, not only intent and result, but as clearly stated in the regulation, the "expression" of discriminatory, specifying or limiting criteria on any of these factors.
nork3
Joined: Feb 12, 2002 Posts: 3876
Posted: 2002-09-19 06:32
Thanks for the well researched (as always) post!
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Posted: 2002-09-18 10:40 
