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PBSA Journal PAGE 10 JAN/FEB 2025 Except where otherwise indicated, articles are copyright © by PBSA 2025. All rights reserved. Policy Updates for CRAs: Navigating Compliance Across Political Divides By Rebecca Harris A s we move into 2025 under a new Trump Administration in the United States, the background screening industry faces unprecedented challenges. These include potential deregulation, shifts in the Consumer Financial Protection Bureau's role, and the enactment of new Privacy and Clean Slate laws. Compounding these are ethical dilemmas tied to polarizing issues like abortion and LGBTQ rights, all of which demand proactive industry responses. Setting the Stage for 2025 Among the most pressing issues today are the criminalization of abortion and challenges to LGBTQ rights, both of which significantly impact reporting practices and workplace inclusivity. As with many polarizing and highly politicized social issues, there are often early adopters who take action, followed by late adopters once legal changes gain traction. This issue may follow a similar trajectory, but alas, it is still too early to determine the long-term outcome. As of January 2025, 12 states have total abortion bans, and many others have limits depending on how many weeks long the pregnancy is. Regardless of personal opinions on abortion, these bans have and will continue to affect our industry. Here is an abnormal yet probable example: You are a Consumer Reporting Agency (CRA) conducting a background check for a Massachusetts employer. The candidate, recently relocated from Alabama, has a pending felony warrant for obtaining an abortion in her home state. As a CRA, you face difficult questions: • Do you report this record? - If so, how do you address the warrant's context? • Does your answer change if the candidate was pregnant due to rape or the pregnancy posed a serious health risk? • Does the client's policy or legal counsel guide this decision? As complicated as the above scenario is, it highlights the complex intersections of compliance, ethics, and individual rights that CRAs must navigate. There may be no definitive answer, but industry partners in our industry are urged to recognize that the screening industry is undergoing significant changes, and these situations are likely to arise with increasing frequency To be proactive, CRAs must recognize that these situations will affect them, and they need to be prepared. In addition to abortion, LGBTQ rights remain a key issue that highlights the political divisions among Americans. Here again is another abnormal, but still probable, example that CRAs may face: Your client is in Florida and is hiring a new operations manager with a salary of USD$100K. The SSN trace reveals two names: one male and one female. As most CRAs do, both names are searched for the background check. You report no records found for the name "John Smith AKA Mary Smith." The client speculates that the candidate may be transgender and rescinds the job offer, citing 'honesty' as a justification. They go through the pre adverse and adverse procedures correctly, but the candidate sues, naming both the employer and the CRA. How can CRAs ensure their practices remain compliant, neutral, and ethical in such scenarios? Legal Protections One may ask, when did employers become privy to employee's personal health data that is not necessary to perform their job duties? Isn't reporting someone's prior health history like abortion or the fact that they may have received gender affirming care protected under Federal law? Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on Race, Color, Sex, including sexual orientation, gender identity, pregnancy, Religion, and National origin. There have been numerous lawsuits against background screening companies with discrimination as one of the key factors. However, as these new laws become enacted throughout the U.S., the possibility for new lawsuits based on different factors of Title VII are not only possible but expected. To mitigate risk, a CRA should have their processes, procedures, and policies reviewed by legal counsel at least once per year. Continued on page 11

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