An employment application should not include any questions that will produce a response that would indicate an applicant's protected class such as age, race, national origin, disability, etc. Although many state and federal equal opportunity laws do not directly prohibit employers from asking such questions on an application, these types of inquiries may be used as evidence of an employer's intent to discriminate, unless the questions asked can be justified by some business purpose of the employer.
While the law does allow for a bona fide occupational qualification (BFOQ) which permits discriminatory practices in employment if a person's religion, sex, or national origin is a BFOQ reasonably necessary for the normal operation of that particular business, establishing a BFOQ generally does not apply to most employers. To establish the defense of bona fide occupational qualification, the employer has the burden of proving that a particular class of employees would be unable to perform the job safely or efficiently and that the bona fide occupational qualification is reasonably necessary to the operation of the business. Typically, it is difficult for most employers that are not religious organizations to invoke the BFOQ defense, as the parameters surrounding it are limited.
Information needed to conduct background checks should be obtained on a separate form authorizing the employer to conduct the check.
Some common inquiries to avoid are listed below.
Birth dates: Making inquiries about an applicant's birth date can give the perception that the employer is using age as a decision-making factor in the hiring process. If federal law or the employer's state law requires a minimum age for employment for certain occupations, then the employer can ask applicants if they are at least the minimum age required for employment.
Graduation dates: Making inquiries of an applicant's school graduation date can reveal an applicant's age. To obtain information on whether an applicant holds a degree or a diploma, the employer can simply ask if the applicant has graduated and what degree was obtained.
Educational Requirements: Certain educational requirements are obviously necessary for some jobs. However, if the educational requirement exceeds what is needed to successfully perform the job and if it disproportionately excludes certain racial groups, it may violate Title VII.
Military discharge information: Questions that are relevant to work experience and training received are permissible. However, an employer should not ask an applicant the reason he or she was discharged from the military or request to see military discharge papers (DD-214), except when directly related to the job or to determine veteran's preference. Military discharge questions could result in obtaining medical disability information on an applicant, which is protected by the Americans With Disabilities Act (ADA). They can also lead to disparate impact based upon race or violation of state military discharge anti-discrimination laws. To obtain information about an applicant's military service, an employer is permitted to make inquiries on the dates of military service, duties performed, rank during service at the time of discharge, pay during service and at the time of discharge, training received, and work experience.
Previous sick days used in employment: In general, employers should avoid asking any questions about the amount of the sick leave taken in the applicant's past positions. Both the Family and Medical Leave Act (FMLA) and the ADA prohibit discrimination and retaliation against applicants who have exercised their rights under those acts.
Race inquiries: An applicant's race, color or national origin should not be asked on an employment application. Some employers may track their applicants' race for affirmative action plans or compliance with the Uniform Guidelines on Employee Selection Procedures (UGESP), but this should be done apart from an application. Employers normally use a separate form or a tear-off section removed from the application. This information is not used in the selection process and is voluntary for the applicant.
Citizenship: Inquiries about an individual's citizenship or county of birth are prohibited and can be perceived as discrimination on the basis the individual's national origin. Applicants cannot be discriminated against based on their citizenship status, except in rare circumstances when required by federal contract. An employer can inquire if an applicant is legally eligible to work in the United States and inform the applicant that proof of his or her eligibility to work in the United States must be provided if selected for hire.
Maiden name, Miss, Mrs. and Ms.: Many states prohibit marital status discrimination, making any questions related to that status possible evidence of discriminatory hiring practices.
Social Security number: Although asking applicants for their Social Security numbers is not unlawful, requesting this information from applicants is not recommended due to identity theft and privacy concerns. Employers do not need this information until it is time to run a background check or complete a W-4; therefore, including it on an application carries unnecessary risk. In addition, some states require security measures to be in place if applications asking for Social Security numbers are transmitted electronically or mailed without being in a sealed envelope.
Salary History: Some states prohibit an employer from requesting salary history information from candidates. These laws are designed to promote greater pay equality by forcing employers to develop salary offers based on job requirements and market pay levels.
Criminal History: Often referred to as "ban-the-box" laws, many state and local laws require employers to remove criminal-history questions from employment applications to protect applicants and candidates convicted of a crime from automatic disqualification during the selection process.
For more information, refer to SHRM's Guidelines on Interview and Employment Application Questions toolkit.
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