Yes. Background checks are allowed, with a few caveats. First, sponsors should indicate what type of background check they mean (e.g., criminal, credit, etc.) and what they mean by “passing it.” For example, descriptions might include “no felony conviction within the last seven years,” “no drug convictions,” or “no conviction of any kind within the last five years.”
Sponsors should take special care when basing employment decisions on background problems that may be more common among people of a certain protected category. For example, sponsors should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, such a background check has a “disparate impact” and is not “job-related and consistent with business necessity.” Further, it is illegal to subject only people belonging to a certain protected class to background checks. Finally, except in rare circumstances, background checks seeking medical or genetic information violate various laws and should be avoided.
Sponsors should also consult information from the Equal Employment Opportunity Commission and other Federal agencies about non-discriminatory uses of background checks, including employer background checks and enforcement guidance on arrest and conviction records.