EMPLOYMENT APPLICATION BEST PRACTICES
Although many state and federal equal opportunity laws do not directly prohibit employers from asking questions reflecting age, race, national origin, disability, etc. these types of inquiries may be used as evidence of an employer’s intent to discriminate. Therefore, it is strongly advised employers do not include any questions that produce a response related to these protected classes unless they can be legally justified.
Establishing a bona fide occupational qualification (BFOQ) to permit hiring practices reflecting these specific inquiries requires proof that these areas are necessary to observe for the normal operation of that business. Most employers that are not religious organizations are typically unable to invoke the BFOQ defense as the surrounding parameters are extremely limited.
Common Inquiries to Avoid:
Age-Related Dates: Referencing an applicant’s birth date can give the perception the employer is using age as a decision-making factor in the hiring process. If federal or state law requires a minimum age for employment for specific occupations, the employer can ask applicants if they are above the minimum age required. This includes graduation dates as school attendance can reveal age.
Educational Requirements: Certain educational requirements are necessary for some jobs. However, if the educational requirement exceeds what is needed to successfully perform the job or disproportionately excludes specific racial groups, it may violate Title VII.
Military Discharge Information: Employers should not ask an applicant the reason he or she was discharged from the military or request to see military discharge papers (DD-214) unless directly related to the position. Military discharge questions could result in obtaining medical disability information which is protected by the Americans With Disabilities Act (ADA) or could lead to a violation of state military discharge anti-discrimination laws. To obtain information about an applicant’s military service, an employer is permitted to inquire about the dates of military service, duties performed, rank during service, training received and work experience.
Sick Days: Employers should generally avoid asking any questions about the amount of the sick leave the applicant has taken during past employment. Both the Family and Medical Leave Act (FMLA) and the ADA prohibit discrimination and retaliation against those who have exercised their rights under those acts.
Race Inquires: Some employers may track their applicants’ race for affirmative action plans or compliance with the Uniform Guidelines on Employee Selection Procedures (UGESP), but this is done apart from the application. This information is never used in the selection process and is voluntarily provided by the applicant.
Citizenship: Hiring decisions cannot be made based on an individual’s citizenship status, except in rare circumstances when it’s required by federal contract. An employer can inquire if he or she is legally eligible to work in the United States and inform them proof of eligibility must be provided if selected for hire.
Social Security Number: Although not unlawful, asking for Social Security numbers is not recommended due to privacy concerns. Employers do not need this information until they are running a background check or completing a W-4 form. Some states require security measures to be in place if applications ask for social security numbers in any capacity.
Salary History: Check with your state legislation before requesting information on an applicant’s previous salary history. These laws are intended to promote pay equality by forcing employers to develop salary offers solely based on job requirements and market standards.
Criminal History: Many state and local laws require employers to remove criminal-history questions from employment applications. This protects applicants convicted of a crime from automatic disqualification during the selection process. Information needed to conduct background checks should be obtained on a separate form authorizing the employer to conduct the check.
Always refer to your specific state laws to ensure organizational compliance.
Information provided by SHRM, Resources and Tools.