What Can You Not Ask in a Reference Check?
November 10 2021
Job reference questions are an integral part of a complete background screening process. While screening procedures like employment history verification, education verification, criminal history, and motor vehicle reports are objectively fact-based, they don’t offer much of a human perspective on how an applicant might fit in with your organization. Reference checks fill that need. However, reference checks have specific parameters. It is important to ask: what can you not ask in a reference check?
Some questions can seem innocuous at first, but the ramifications of asking them in a reference interview can be extreme.
Topics to Avoid
While it can be challenging to understand what can you not ask in a reference check, you should always avoid certain topics and questions.
Don’t Ask About Race, Religion, Age, Gender, and Sexual Orientation
It is, of course, illegal to discriminate against an individual based on these factors in the hiring process, so they shouldn’t play a role in how you choose employees, either.
The Age Discrimination in Employment Act (ADEA) prohibits discrimination against individuals on account of their age. Asking an applicant’s age is considered a “fishing expedition” that could violate the law. Questions about race or nationality are also prohibited by Title VII of the Civil Rights Act.
Disabilities and Health
Disability discrimination is prohibited by the Americans with Disabilities Act (ADA), and it’s illegal for an employer to ask if a candidate has a disability. Health-related information is protected by federal law, and the presence of a disease or disability doesn’t necessarily preclude an individual from productive work.
Discrimination in the job application process based on health conditions is prohibited under the Health Insurance Portability and Accountability Act (HIPAA). An employer cannot ask if an applicant will need time off for health-related issues in a reference check.
Questions about height or weight are also not allowed by Title VII, nor can they be used to determine job availability.
You can, of course, run a criminal history check on your candidates or employees with their explicit consent. However, avoid asking about criminal history information in job reference questions. Use reference questions only to glean information about a potential employee’s work ethic, work experience, prior responsibilities, etc.
Credit and Salary
Credit reports are another integral part of the background screening process but asking about an individual’s credit history could indicate that you intend to discriminate based on financial status. Avoid questions that reveal information about salary history or job offers. Instead, use a reputable background check company to run a proper credit check.
The Equal Pay Act prohibits employers from paying female employees less than male counterparts for the same job. Asking applicants what they’re currently making or what they’d be willing to make could indicate that you intend to offer a job on that basis.
Credit history reports are only legally available when necessitated by the job position. If an employer’s educated hiring decision requires an employee’s credit history, it can be requested. However, there cannot be any questions involving the applicant’s credit history when performing a reference check. Such questions put the company at risk of failing to comply with the Fair Credit Reporting Act (FCRA).
To keep you compliant with salary verification laws across the country, InfoMart’s compliance filters prevent salary verification information from showing up on candidate profiles where prohibited by law.
Marital Status, Family, and Children
Questions about marital status and childbirth are also off-limits. Likewise, avoid questions related to a candidate’s children, family members, and school affiliations. Queries directly related to an individual’s family members have been found illegal in Title VII cases, as they can be used to discriminate against women or minority candidates who may wish to start a family or relocate for personal reasons.
An applicant’s marital status and family life, including current or planned children, have no place in a reference check. For example, if a hiring manager asks about a candidate’s family and does not hire the applicant, the company could be liable for discrimination. An employer concerned about a candidate needing time off or not being able to work the necessary hours may find a safer method in well-scripted questions focusing on time-based position expectations.
What Should I Include in Job Reference Questions?
Now you know what can you not ask in a reference check. You should use a reference check to gain an understanding of your job applicant’s qualifications. So, instead, ask questions like:
- What is your relationship with the candidate?
- What experience do they have with this kind of work?
- How would you assess their punctuality, attention to detail, and ability to self-motivate?
- What were their responsibilities?
Get Help with Reference Checks
One way to ensure that your job reference questions are safe is to have interviews conducted by an FCRA-compliant background screening company like InfoMart. If you’re wondering “what can you not ask in a reference check?”, don’t worry. Our team helps confirm the information provided on an applicant’s resume to gain valuable opinions from previous employers and other sources.
We understand the nuances of the FCRA and how important it is to protect your company from possible litigation. Therefore, we supply speedy, accurate background screening and in-depth reference checks, along with a host of other services.
About Tammy Cohen
Tammy Cohen, an industry pioneer and expert in identity and employment screening, founded InfoMart 30 years ago. Deemed the “Queen of Screen,” she’s been a force behind industry-leading innovations. She was most recently the first-to-market with a fully compliant sanctions search, as well as a suite of identity services that modernizes talent onboarding. Tammy revolutionized the screening industry when she stepped into the field, developing the first client-facing application and a due diligence criminal search that has since become standard for all background screening companies. Cohen has received national awards and honors for her business and civic involvement, including Atlanta Business Chronicle’s Top 25 Women-Owned Firms in Atlanta, Enterprising Women Magazine’s Enterprising Women of the Year award, the YWCA of Northwest Georgia’s Kathryn Woods Racial Justice Award, and a commendation in the 152nd Congressional Record. To learn more about Tammy, visit www.tammycohen.com.
InfoMart has been revolutionizing the global background and identity screening industry for 30 years, providing businesses the information they need to make informed hiring decisions. They develop innovative technology that modernizes talent onboarding, including a first-to-market biometric identity authentication application and a verified sanctions search. The WBENC-certified company is a founding member of the Professional Background Screening Association, and they have achieved PBSA accreditation in recognition of their consistent business practices and commitment to compliance with the FCRA. The company is dedicated to customer service, speed, and accuracy, and it has been recognized for its success, workplace culture, and corporate citizenship with over 45 industry awards. To Get the Whole Story on InfoMart, please visit www.InfoMart-USA.com, follow @InfoMartUSA, or call (770) 984-2727.