Credit history as next ‘ban the box’ campaign?

By BenefitsPro

By Dan Cook

“Ban the box” has become the rallying cry for those attempting to eliminate that “past criminal history” check box on job applications. Even as that campaign gathers steam, a second box campaign is waiting in the wings.

In this case, it’s the growing request from employers to prospective employees to let them take a peek at their credit history.

Driven by the wave of ruined credit histories produced by the Great Recession, credit checks are viewed by employers as a way to weigh the relative stability of someone who may be hired.

A powerful foe has arisen to fight this hard-to-reject request: The Equal Employment Opportunity Commission.

The EEOC recently unveiled “guidance” around background checks that included its thoughts about strong-arming job candidates into agreeing to a credit history check by a prospective employer. Essentially, the EEOC wants to limit such requests to certain situations, such as when someone will be managing money or reviewing the credit history of others as part of a job. (Note: the EEOC reportedly conducts credit history checks on 90 percent of its jobseekers.)

So far, the commission’s campaign to ban this particular box has failed; twice, courts have rejected challenges to the credit history check box.

But now the EEOC has a legislative ally in U.S. Rep. Steve Cohen, a Tennessee Democrat.

His H.R. 645, introduced in early 2013, states “a person, including a prospective employer or current employer, may not use a consumer report or investigative consumer report, or cause a consumer report or investigative consumer report to be procured, with respect to any consumer where any information contained in the report bears on the consumer’s creditworthiness, credit standing, or credit capacity.”

Cohen’s bill, which has 31 co-sponsors, makes certain exceptions, similar to those suggested by the EEOC:
  • When the consumer applies for, or currently holds, employment that requires national security or FDIC clearance.
  • When the consumer applies for, or currently holds, employment with a state or local government agency which otherwise requires use of a consumer report.
  • When the consumer applies for, or currently holds, a supervisory, managerial, professional, or executive position at a financial institution.
Although the bill is languishing at present, and the EEOC is still stinging from its legal setbacks, attorney Matthew Korn, Fisher & Phillips LLP, warns that the issue is probably not going to go away in an article written for Mondaq’s site.

As with the criminal history check box, HR managers may want to think about how they ask about a candidate’s credit history, or if they even want to continue to do so, he says.

Citing the cases where the courts rejected the EEOC’s challenges, Korn says: “These cases highlight that the EEOC will continue to push its enforcement agenda, which includes aggressively pursuing claims that criminal and/or credit background checks violate Title VII. Employers who utilize such checks should review their policies, ensure that screens are job-related, defensible, based on business necessity, and narrowly-tailored to meet the company's objectives.

“Drafting a background check policy that is both consistent with the guidance and that adequately protects your business can be a frustrating process,” he says. “Nevertheless, the EEOC intends to increase its enforcement of systemic discrimination over the next few years, and revising your policy now may help minimize your risks if the EEOC decides to investigate your company.”

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