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CORI checks and revealing date of birth

Q: Is it legal for an HR Department to have an applicant complete a CORI form at their first interview? This form requests your date of birth. I feel on a recent interview, that age factored into their decision not to select me for the next round of interviews. I matched well with the stated job requirements, and had 1 1/2 hour long meeting with 2 hiring execs that went well. Within 2 weeks notified not a candidate. Refusing to furnish the CORI form info creates the impression that you are hiding something. This form and CORI check should be completed when a candidate is closer to an offer.

A: You raise some very valid concerns about how your age may or may not have been a factor during the interview process. I am sorry to hear that you were not offered a position that you were interested in and for which you believed that you were qualified. Job hunting in this economy is challenging and it must have been disappointing to find out that you were not invited back for a second round. You are correct that, with certain limited exceptions, an employer who refuses to hire an otherwise qualified applicant for a position because that person is age forty or over has engaged in unlawful age discrimination. It is for that reason that Massachusetts regulations prohibit employers, as a general rule, from asking an applicant’s age or date or birth during the application process. However, the prospective employer did not violate the law by asking you, at the initial interview stage, to complete a CORI Acknowledgement Form. A completed CORI acknowledgement form authorizes the prospective employer to conduct a pre-employment criminal background check. This form requires that you provide your date of birth as well as other identifying information. So your question is a good one. Doesn’t the “CORI form” process reveal your age and isn’t that illegal if part of the interview process? It is not illegal.
I asked Jeffrey A. Dretler, partner in the Employment Law Group at Prince Lobel Tye LLP, to help us better understand the legal issues. Dretler explains, “Effective November 4, 2010, as part of the Massachusetts CORI reform bill, it became unlawful for employers to ask applicants about their criminal histories on an initial job application and required employers seeking such information to withhold such inquiry until at least the interview stage of the application process. The law does not, however, require employers to wait until the last round of interviewing before making such an inquiry. In order to conduct a criminal background check, an employer must obtain the applicant’s written authorization, and the form requesting such authorization requires that the applicant provide his or her date of birth – probably to increase the likelihood that the criminal background search will be conducted on the correct person. As a way to avoid the possibility that age could be used as a factor in the employment decision, savvy employers will restrict access to the information you provide on your CORI acknowledgment form to only those persons who are facilitating the conduct of the background check, and not provide that information to the persons who are making the hiring decisions.”
Unfortunately, there could have been a number of factors that may have impacted the employer’s decision not to call you back for a second round of interviews despite that fact that your first interview went well. The company could have hired a more qualified candidate. If you feel strongly that your age was a contributing factor however, you could file a claim against this company. You may want to consult a competent employment attorney to explore this option. You could also contact the Massachusetts Commission Against Discrimination (if this occurred in Massachusetts) or the U.S. Equal Employment Opportunity Commission.

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