December 28, 2015
Application forms should be reviewed to determine whether they elicit pertinent job-related information and to ensure that they do not contain legally prohibited or other problematic inquiries. The application should be reviewed to balance the risks and benefits of each inquiry and to verify that it is in the best form possible to find the best qualified candidates for available positions. A poorly drafted application form may lead to the exclusion of qualified candidates. Certain inquires may be used as evidence against an employer in a suit under state or federal anti-discrimination laws.
In general, employers should avoid inquiries that are not job related. For instance, employers should avoid:
- Any inquiry that elicits an applicant’s membership in a “protected class” (examples follow).
- Any inquiry about an applicant’s age beyond what is necessary to establish that the applicant meets minimum age requirements.
- Any inquiry that would reveal an applicant’s national origin. However, an employer can inquire whether an applicant can furnish
- proof of authorization to work in the United States. Also, an employer may inquire about an applicant’s ability to speak English and/or other languages as long as the specific language proficiency is necessary for the job.
- Any inquiry that may reveal an applicant’s race or color.
- Any inquiry about marital status.
- Any inquiry about children or childcare arrangements.
- Any inquiry about an applicant’s religion, unless you are a religious organization. Churches and other religious organizations are exempt from Title VII’s prohibition against religious bias in hiring as long as the entity (1) is organized for a religious purpose; (2) is engaged primarily in carrying out that religious purpose; (3) holds itself out to the public as an entity for carrying out that religious purpose; and (4) does not engage primarily or substantially in exchanging goods or services for money beyond nominal amounts.
- Any inquiry into whether there are any religious holidays on which an applicant would not be able to work. However, an employer may elicit confirmation that the candidate can meet the attendance requirements of the position. (Note: There is a religious accommodation requirement under the law).
- Any inquiry whether an applicant has ever been arrested. However, an employer may otherwise ask about an applicant’s criminal history. For example, an employer may ask if the applicant has ever committed or been convicted of a crime, entered a plea of nolo contendre (no contest) to a crime, or received a suspended sentence or had adjudication withheld for a crime. If such a question is asked, the employer should state that a criminal record is not an automatic bar to employment, and should also ask for details. (Note: The EEOC has recently issued guidelines to employers regarding criminal history inquiries and suggested best practices).
- Any inquiry into an employee’s memberships in organizations that may reveal the applicant’s protected status.
- Any inquiry regarding the applicant’s or family members’ medical conditions/disabilities or lack thereof (medical questionnaires
- should not be used until after an applicant has been given a conditional offer of employment, but before the applicant has started work). (Note: There is disability-related reasonable accommodation requirement under the law).
- Any inquiry regarding past or pending workers’ compensation claims. Although many of the above-referenced types of inquiries are not illegal per se, they can be used as evidence in a discrimination or other employment-based lawsuit. At a minimum, employers should consider obtaining the following information on their employment applications:
- Name;
- Other names used;
- Address;
- Telephone Number(s) (including cell phone);
- Confirmation of applicant’s legal authorization to work in the United States;
- Position being sought;
- Specification of hours or shifts sought, if applicable;
- Pay expectations;
- Work experience; including, for each previous employer, the employer’s name, address, and telephone number; dates of employment; salary information; supervisor’s name and title; job title; and reason for leaving;
- If there are gaps in the applicant’s work history, request an explanation;
- If the position involves driving, the applicant’s driver’s license number and driving record;
- Educational background;
- Training, certifications and special skills;
- References (in addition to prior employers and relatives);
- Criminal history; and
- Civil (intentional tort) suit history.
Just as an application can be used against an employer in a civil lawsuit, so too can it be used against an employee/applicant. If an applicant does not honestly and accurately complete an application, he is being dishonest, which may be grounds for disqualification of the application, termination of employment