Employer Background Checks and Your Rights

What Employers Can Ask About Your Background

When employers ask you about your background, they must ask you the same questions they ask every other applicant — regardless of your race, national origin, color, sex (including pregnancy, sexual orientation, gender identity, and transgender status), religion, disability, genetic information (including family medical history), or age (if you’re 40 or older).

Employers aren’t allowed to ask for extra background information because you are, say, of a certain race, or because you have filed a complaint against an employer alleging employment discrimination before.

Employers also can’t retaliate against you — whether you’re a job applicant or employee — for asserting your right to be free from employment discrimination, including harassment. Asserting these rights is called “protected activity,” and it includes opposing alleged discrimination, or participating in proceedings under federal laws enforced by the Equal Employment Opportunity Commission (EEOC).

There are also rules about the types of questions an employer can ask you:

• your employment history
• education
• other public records, financial or credit history, and your public social media activities

Employers cannot ask you about and check your background for

• medical information if they haven’t offered you the job. Employers may ask you for medical information in limited circumstances either after they’ve offered you the job, or after your employment begins.
• genetic information, including your family medical history (except in limited circumstances)

Some employers might say not to apply if you have a criminal record. That could be employment discrimination. If that happens to you, contact the EEOC. Find more information on arrest and conviction records in employment decisions at the EEOC website.

Laws in your city or state might impact whether or when employers can ask you about and run a background check for your criminal history or credit history. Here are some things to consider:

• Before you fill out an application, check the laws in your state.
• A criminal history might not prevent you from applying for or getting a job. For example, the majority of federal government jobs allow people with criminal records to compete for employment.

Background Reporting Companies

When employers hire a background reporting company in the business of compiling background information and history, certain rules apply: 

• The employer must tell you they could use the information to decide about hiring, promoting, or firing you. They must give you this information in writing and in a standalone document. They must also get your written permission before asking the company to run a background check.

• An employer must take certain steps before they decide not to hire, keep, or promote you because of something in the report. They must give you a copy of the report and a “Summary of Rights” that tells you how to contact the background reporting company.

If You’re Turned Down for a Job or Promotion

In some instances, it’s legal for an employer to deny you a job or a promotion based on information in your background report. Sometimes it’s a mistake. In other instances, the employer’s decision to deny you a job or a promotion might be based on discrimination. If you don’t get a job or a promotion because of information in your background report, the employer must tell you the following verbally, in writing, or electronically

• the name, address, and phone number of the background reporting company
• that the background reporting company didn’t make the decision about not hiring or promoting you and can’t give specific reasons for it
• that you have the right to dispute information on your report that is inaccurate or incomplete with the background reporting company. You can do this by contacting the background reporting company and following the company’s instructions for disputing the information
• that you have the right to get an additional free report from the background reporting company. You must ask for it within 60 days of the employer’s decision.

When you get your background report, review it carefully. If you think there are mistakes, contact the background reporting company to explain the mistakes and ask that they fix them, and include any supporting documentation you have with your request. If the background reporting company informs you that it has revised your report, review the report to make sure the mistakes are gone. Ask the background reporting company to send a copy of the corrected report to the employer and tell the employer about the mistake.

Denial Due to Discrimination

In some instances, an employer’s use of an individual’s background report information can lead to illegal discrimination. For example, employers shouldn’t use a background report policy or practice that

• excludes people with certain criminal records if it significantly disadvantages one group of individuals compared to another group, based on race, national origin, or other protected characteristics covered by state or federal laws that prohibit employment discrimination; and
• does not accurately predict who will be a responsible, reliable, or safe employee.

In legal terms, an employer cannot have a policy or practice that has a disparate impact on a particular group, unless there’s a job-related reason and it’s consistent with business necessity.

If you think an employer discriminated against you during the background check process, you may contact the EEOC by visiting its website at eeoc.gov or by calling 1-800-669-4000, or 1-800-669-6820 (TTY). The EEOC enforces federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, sexual orientation, gender identity, and transgender status), national origin, age (if you’re 40 or older), disability, or genetic information, or in retaliation for a person’s involvement in prior activities protected by federal employment discrimination laws. The EEOC investigates, conciliates, and mediates charges of employment discrimination and, in some instances, files lawsuits in the public interest.

What You Can Do Before You Apply

• Check your credit report. That way, you can fix any mistakes before an employer sees it. To get your free credit report, go to AnnualCreditReport.com, or call 1-877-322-8228.

• See if the local police and FBI list any criminal records in your name. Visit the State Department’s Bureau of Consular Affairs site for detailed information on how to get this information. The information you find here might be different than what a background reporting company might have. But mistakes in local and FBI records can cause you problems. It’s worth checking if you’re concerned. And if you spot mistakes, you can be ready to address them or explain them to a potential employer.

• Know your rights as a job applicant or employee. The EEOC enforces federal laws designed to protect you against employment discrimination because of different protected categories. While employers generally can ask about your criminal history, employers can’t use your criminal history to discriminate against you based on a protected category, like your race. If you believe an employer has discriminated against you, contact the EEOC online at eeoc.gov, by calling 1-800-669-4000, or by locating an EEOC field office near you.

Protect Your Privacy

• Don’t put your Social Security number or banking information on an application or resume. If a company asks you for this information before you even interview, it’s probably a job scam. Employers may ask for your Social Security number during the interview process to run a background check. Once you’re hired, they may ask for your banking information so you can get direct deposit for your paychecks.

• Be mindful of what you share on social media and other places online. If you don’t want potential or current employers to see something you say or do, think about not posting it, or limiting who you share it with.

Report It to the FTC

If an employer got your background report without your permission, or rejected you without sending you the required notices, report it to the FTC at ReportFraud.ftc.gov. Also tell the FTC if you learn that a company shared your information with others without your permission.

Keep in mind that the information in this article is not legal advice. For that, you’ll need to consult an attorney. For the most up to date EEO-related developments, visit eeoc.gov.