Much of the regulation relating to background screening encompasses fair treatment issues. These laws prohibit discrimination on the basis of religion, national origin, age, marital status, gender, medical condition or disability, or financial condition. Some of the laws that relate to fair treatment issues include:

Discrimination in any phase of hiring can lead to claims against employers for violations of Title VII of the Civil Rights Act and violations of the Equal Employment Opportunity Commission (EEOC) (www.eeoc.gov) guidelines. To ensure fairness of treatment of applicants, recruitment and hiring should be conducted in a manner that is impartial, objective, and legally defensible. Fair hiring practices include a consistent selection criteria and evaluation of candidates for similar positions. The selection criteria must be properly related to established job requirements. Finally, there must be consistent treatment of applicants in all phases of the process including pre employment screening, interviews, rating processes, and assessment techniques.

With respect to background screening, the ADA provides legal guidance that prevents employers from asking medical questions before a conditional offer of employment is made, and that are not considered bona fide occupational qualifications. Because “current illegal use of controlled substances” is not covered by the ADA, employers can do drug testing and screening at the applicant stage. So-called psychological, “honesty” testing, etc., is not prohibited, as long as it does not have a medical dimension. The EEOC has issued guidance on how to distinguish “psychological” testing (permitted) from “medical” testing (not permitted at the pre-hire stage).