Employment applications may seem innocuous, but they contain a number of minefields of which employers should be aware. In general, avoid asking applicants questions that elicit information that cannot be considered when making a hiring decision. In particular, beware:
1. Including disability-related or medical questions. Any such inquiry would violate EEOC guidance and possibly the ADA and similar state laws. If you ask an applicant such a question, the EEOC or a court may presume prohibited information was a factor in hiring.
2. Not including an at-will disclaimer. You may want to inform applicants that the application is not intended to and does not create a contract or offer of employment and state that, if hired, employment would be on an at-will basis and could be terminated at the will of either party.
An at-will disclaimer helps to avoid any claim that the application is an offer of guaranteed employment or to defend a claim of breach of contract if the employee is not hired or is later discharged.
3. Not including a nondiscrimination statement. You may want to inform applicants that you are an equal opportunity employer that does not discriminate in hiring based on federally protected classifications (i.e., race, color, national origin, ancestry, religion, sex, disability, veteran status, age or genetic information).
Add any additional protected classifications covered by state or local law, such as sexual orientation or marital status.
4. Requesting graduation dates in the education section. Asking applicants for graduation dates (usually in the education section of the employment application where it inquires about degrees obtained) enables the hiring manager to guess the age of the applicant.
That may lead to a finding of discriminatory intent on the basis of age under the Age Discrimination in Employment Act or state law. This is a particular problem if the employee’s graduation date has no bearing on the qualifications for the position. It is appropriate to ask questions regarding the experience of the applicant if it is relevant to a job qualification.
5. Asking about arrests and convictions, without appropriate disclaimers. Several states and local jurisdictions expressly prohibit asking about applicants’ criminal histories. These are called “ban the box” laws.
EEOC guidance further recommends not asking about convictions on job applications. If you do, limit inquiries to convictions for which exclusion would be “job related for the position in question and consistent with business necessity.”
The EEOC discourages asking about arrests at all. It reasons that being arrested is not proof that an applicant engaged in criminal conduct.
The EEOC also has taken the position that an arrest record, standing alone, may not be used to screen out an applicant. However, you may make an employment decision based on the conduct underlying the arrest if the underlying “conduct makes the individual unfit for the position in question.”
Use caution in this area.
6. Putting a background check acknowledgement on the employment application. Under the Fair Credit Reporting Act (FCRA), the disclosure of your intent to obtain a background check and section must be in a “stand-alone” document separate from the application.
7. Not including language telling applicants how to request a reasonable accommodation to apply or participate in the interview process. The ADA requires employers to reasonably accommodate applicants during the application process to ensure equal access to available positions. Consider instructing applicants how to initiate that process independent of your online application system and hiring manager.
8. Asking for a photograph. Guidance from the EEOC prohibits asking applicants for photographs. For identification purposes, you may obtain a photograph after the applicant accepts a job offer.
9. Asking about marital or familial status. Don’t ask about an applicant’s marital status, the number of kids he or she has (or their ages) or child care provisions. That could be construed as sex discrimination. In many states, marital or familial status is a protected classification.
10. Asking about citizenship. The anti-discrimination provision of the Immigration Reform and Control Act prohibit discrimination against applicants because they are not U.S. citizens. Form I-9—not your employment application—is the appropriate forum to determine an applicant’s citizenship status. Rather than asking about citizenship, ask if an applicant is legally qualified to work in the United States.
Employment applications are not only one of a company’s first contacts with applicants and new employees, they are also written documents that can later be used as evidence in an adversarial proceeding. Avoiding these common blunders can help you maintain best practices and stay clear of legal entanglements.
Jennifer Cotner is of counsel in Ogletree Deakins’ Raleigh, N.C., office.
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