A question we frequently receive when educating our current and prospective clients about the pre-employment background screening process is, “I cannot 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 clients that they are not the ones requesting this information; instead, it is us making that request as the Credit Reporting Agency (CRA) because 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 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 potential conflict, the Equal Employment Opportunity Commission (EEOC) clarified in July of 1999 when an employer may ask for a full date of birth. The EEOC wrote an opinion letter that indicates, “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 Age Discrimination Employment Act (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 than 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.
To ensure a safe workplace, as employers are required to do under both state and federal law, your organization needs to be certain that it is incurring dangerous risks. The only way to do this 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.