Application forms are overall forms used for all applicants for jobs with your company. This article discusses questions and information that can and can’t be included in an employment application form.
What You Need to Know About Job Applications and Discrimination
Protected Classes
Many people in the U.S. have been legally designated as being protected against discrimination in employment. In other words, you may not discriminate against someone on the basis of:
RaceColor (skin color/complexion)ReligionSex (including pregnancy, sexual orientation, or gender identity)National origin (nationality/part of the world/accent, etc.)Age (40 or older)DisabilityGenetic information (including family medical history)Military service Criminal recordCitizenship
Two Kinds of Discrimination
The equal employment opportunity laws (especially Title VII of the Civil Rights Act of 1964) distinguish between two kinds of discrimination:
Disparate treatment is intentional discrimination. You can’t treat some applicants differently than others. Disparate impact is more difficult to spot because it prohibits employers from using seemingly neutral actions that have the effect of disproportionately excluding persons based on their protected status.
It’s not the questions you ask on a job application form; it’s the impact of those questions. You may ask what seems to be a legitimate question, but it may have more of an impact on a protected class than on others. For example, the question, “Do you have a disability?” is better asked, “Can you perform all the tasks needed in this job?”
Questions You Can’t Ask on a Job Application
Race or Ethnic Origin: This should never be a question on a job application form. Take off any questions about height, weight, hair color, or eye color because these indicate race or ethnic origin. Gender: Questions shouldn’t be asked about this, ever. Age: If age is a factor for a specific job, you might be able to ask if the person is over 18 (or 21). You could also ask, “If hired, can you furnish proof of age?” Native Language: You can’t ask if English is their first language or what their native language is. Citizenship: You can’t ask whether a job applicant is a U.S. citizen. You must verify work eligibility during the hiring process. Disparate Impact: You can’t ask questions that have a disparate impact on women. For example, you can’t ask if the person is pregnant, if they have children or childcare responsibilities, or their marital status. Unemployment: You can’t ask if someone is unemployed. Your state may have laws governing your consideration of unemployed status. Disability: You can’t ask if an applicant has a disability. You can only ask if the applicant will need a reasonable accommodation during the application process or on the job. Religion: You can’t ask about a person’s religion. You can ask if the person needs accommodation (special treatment) because of their religion. Arrest and Conviction Reports: The EEOC doesn’t prohibit employers for asking for and using arrest or conviction records, but it does want to make sure that this information isn’t used in a discriminatory way. Criminal records may disproportionately exclude people of a particular race or national origin. You must be able to show that excluding someone because of criminal convictions is “job-related and consistent with business necessity.” Credit Records: Don’t ask about credit records. Applicants must specifically give permission for these reports. A credit report can be included in a background check if you need this for a specific job. Social Security Number: It’s not illegal, but there is a privacy issue here. If the employee is hired, they will need to include SSN on their W-4 form for tax purposes.
You Can Ask:
Overtime and shift availability: You can ask if you require this for all employees in specific jobs. Skills and Qualifications: For example, you can ask about professional licenses, other languages spoken, and the use of computers, but only if these are required for specific jobs at your company. Education: Ask only if it’s relevant to the job. You can include information about education on an application, but don’t ask what year someone graduated (that might be age discrimination). Work History: You can ask about the position, title, duties, skills, start and end dates, and the reason for leaving. But don’t include pay history (disparate impact). You should be paying based on the specific pay rate for the specific job. Current Address: You can ask for a current address if you need to contact the person by mail. Better yet, ask for an email address if that’s how you normally contact applicants. Don’t ask for previous addresses.
Don’t Forget the Applicant’s Signature and Verification
You’ll need a paragraph at the end of the application that requires applicants to state that all the facts are true and that they haven’t left out anything important. This is the place where you get approval for testing or background checks. Get help from your attorney in writing this section to make sure this language is bulletproof.
Is this information really necessary? Could the information be considered discriminatory? Could I ask this question after the person is hired?
