A reference check is a common hiring step where a potential employer contacts a candidate’s previous employers or colleagues. The goal is to verify resume information and understand the applicant’s work habits, skills, and character. However, this process is governed by laws designed to prevent discrimination and ensure fairness. Employers must understand these legal boundaries before contacting references.
The Legal Framework Guiding Reference Checks
The rules for reference checks ensure hiring decisions are based on a candidate’s ability to do the job, not personal traits. Federal anti-discrimination laws form this framework, making it illegal to base hiring on “protected characteristics.” Therefore, questions should not be designed to reveal information about these protected categories.
Key federal statutes create these protections. The Civil Rights Act of 1964 (Title VII) prohibits discrimination based on race, color, religion, sex, and national origin. The Age Discrimination in Employment Act (ADEA) protects individuals who are 40 or older, and the Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with disabilities.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces these laws, and its guidelines clarify that reference check questions should not touch upon protected areas. While laws do not list specific forbidden questions, it is illegal to use information about protected characteristics in hiring. Asking questions that solicit this information creates significant legal risk.
The Fair Credit Reporting Act (FCRA) also applies if a company uses a third-party service for reference or background checks. Under FCRA, the employer must get written consent from the candidate, inform them if the information leads to a negative hiring decision, and provide a copy of the report.
Permissible Questions to Ask References
The safest and most effective questions relate directly to the candidate’s past job performance and the requirements of the new role. Sticking to job-related inquiries verifies resume information, provides insight into professional capabilities, and ensures the process is fair.
A good starting point is confirming the basic details of the candidate’s previous employment. Ask the reference to verify the candidate’s job title, dates of employment, and the specific duties they held in their former position. This confirms the accuracy of the candidate’s described experience.
Beyond simple verification, you can ask for a qualitative assessment of the candidate’s performance. Questions about the candidate’s strengths and areas for improvement are acceptable. For example, you could ask, “What were the candidate’s most significant accomplishments in their role?” or “In which areas did the candidate need the most guidance or development?”
It is also permissible to ask about the circumstances of their departure with a direct question like, “What was the reason for their separation?” Asking if the candidate is “eligible for rehire” can also be a strong indicator of their standing as a former employee.
Prohibited Topics to Avoid
To maintain a legally compliant process, avoid any questions that could reveal a candidate’s protected status. These topics are unrelated to job performance and asking about them, even unintentionally, can expose an employer to legal challenges.
Direct questions about a candidate’s personal life are prohibited. This includes inquiries about marital status, family status, plans to have children, pregnancy, or related medical conditions.
Questions about a candidate’s background or personal beliefs are also forbidden. Never ask about a candidate’s race, color, ethnicity, national origin, or religious beliefs and practices, as these attributes have no bearing on job qualifications.
Health and physical condition are also protected categories. It is illegal to ask a reference about a candidate’s disability, medical history, or past workers’ compensation claims. Similarly, you cannot ask for a candidate’s age, date of birth, or ask questions that might indirectly reveal age, such as high school graduation dates.
Navigating State-Specific Rules and Sensitive Information
Beyond the federal framework, employers must be aware of state and local laws that impose additional restrictions. These rules often address specific areas like salary history and criminal records, creating a more complex compliance landscape that requires adherence to avoid legal trouble.
A significant trend at the state and city level is the adoption of salary history bans. These laws prohibit employers from asking a candidate or their previous employers about prior compensation to break cycles of pay inequity. Before a reference check, determine if your organization operates in a jurisdiction with such a ban.
Inquiries into a candidate’s criminal history also have varying rules. Many states and cities have “Ban the Box” laws, which limit when an employer can ask about criminal convictions. These questions are handled through a formal background check, often restricted until after a conditional offer of employment is made.
Even with the best intentions, a reference might volunteer unsolicited information about a protected characteristic. If a reference offers information about a candidate’s health or family, the best course of action is to redirect the conversation back to job-related topics. Do not record the unsolicited information, and ensure it does not influence the hiring decision.
Best Practices for a Compliant Process
A structured and consistent process is fundamental for conducting effective and legally sound reference checks. Following best practices ensures fairness and minimizes legal risk.
The first step is to always obtain written consent from the applicant before contacting their references. The consent form should clearly state that you will be contacting former employers and the purpose of the check. This is a best practice for all employers and a legal requirement in certain situations.
Use a standardized script of questions for all applicants being considered for the same role to ensure they are evaluated on the same criteria. This consistency helps prevent unconscious bias and ensures a fair process. Document the conversations carefully, keeping objective notes focused exclusively on job-related information.
Proper training is important for anyone conducting reference checks. Hiring managers and HR staff should be educated on the legal boundaries, including which questions are permissible and which are prohibited. This ensures everyone involved understands their obligation to conduct checks in a compliant and professional manner.