This summer the world’s greatest athletes are competing for Olympic gold. In order to win, these athletes must follow a strict set of rules to prevent deductions and disqualifications. When employers compete for the best candidates in the marketplace, they too must follow a strict set of rules to avoid being “dinged” by a lawsuit. Some employers like to know as much as possible about a prospective employee to determine if the individual will be the perfect fit for the company. But this approach is akin to an athlete using performance enhancing drugs in an attempt to gain a competitive advantage; it’s risky and sooner or later the athlete will get caught. The wiser and more sustainable approach is to ask questions that will provide business-related information but will not solicit impermissible protected characteristics.
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Employers cannot discriminate against any employee or applicant on the basis of race, creed, color, religion, sex, sexual orientation, gender identity, national origin, age, disability, veteran status, or genetic information. As a result, employers cannot advertise in a way that shows a preference for someone applying for a job based on one of these protected characteristics, or a lack thereof.
For example, help wanted ads that use phrases seeking individuals that are “able-bodied” or “young” may be considered discriminatory because it discourages individuals with a disability or more elderly individuals from applying for the available position. When employers advertise, they should focus on the job and the characteristics relevant to the job rather than describing desired individuals (i.e., avoid adjectives like “female,” “ideal for immigrants,” “strong”).
If the available job is labor-intensive, advertise by explaining that the job requires heavy lifting to avoid the appearance of a bias against disabled applicants. Also, employers should avoid using language that may deter certain individuals from applying, such as by tying the advertisement to a religious holiday (referencing secular holidays is acceptable because it is unlikely to be construed as discrimination based on a protected characteristic). One best practice, that is not required, is to explicitly state on the advertisement that the employer does not discriminate on the basis of a protected characteristic.
APPLICATION FORMS
Are they necessary?
Some employers prefer not to hassle with applications and opt to review resumes instead. Resumes allow prospective employees to pick and choose what information they want to share. Conversely, applications can provide the employer with the opportunity to obtain more detailed information about an applicant’s qualifications. Further, applications are valuable because they collect consistent information from all applicants in a uniform format. This allows employers to efficiently compare credentials on an objective basis. So long as the application questions are lawful, the employer can reference this objective process to defend itself from a discrimination claim based on its hiring practices.
Application Questions: Avoid the Pitfalls
An employment application should only request information directly related to an applicant’s ability to perform the specific job. Like advertisements, employers must take precautions to avoid the appearance of impropriety and avoid asking questions that may solicit answers that convey protected characteristics.
Do not ask about an applicant’s race on an employment application because it may suggest that race will be used as a factor in deciding whether to hire the applicant. If you desire to track race or gender for an affirmative action plan, use the EEOC Voluntary Self-Identification Form and keep that document separate from the application. The information obtained on the Voluntary Self-Identification Form cannot be used in the application process.
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Marital Status or Number of Children
Employers should refrain from asking about an applicant’s marital status, number and ages of children, if the applicant is pregnant, etcetera. Inquiring about this information may violate Title VII, even if the questions are asked of every applicant, both male and female. Similarly, employers should not ask about the employment status of the applicant’s spouse because that information may be impermissible discrimination based on gender.
Likewise, it is a best practice to avoid inquiring about a woman’s maiden name. Federal law does not prohibit discrimination on the basis of an applicant's marital status but many states do so (Iowa is not currently one of them). To avoid a negative allegation that you discriminated based on the applicant’s marital status, gather information to complete benefit forms only if the applicant is selected for hire.
Inquiries about an applicant’s country of birth or citizenship may be perceived as impermissible discrimination on the basis of one’s national origin (i.e., avoid asking “Where were you born?”). Employers can inquire if an applicant is legally eligible to work in the United States and can notify the applicant that proof of eligibility to work must be provided if selected for hire. Once hired, all employees must complete an I-9 Employment Eligibility Form.
The recent high profile data breaches and an ever-growing black market for private data make identity theft and privacy concerns a hot topic. As a result, employers should not request social security numbers on an application unless there is a legitimate reason for doing so (such as in conjunction with a background check - see below). Employers should separate confidential information, such as a social security number, from the employment application and should ensure that safeguards are in place so that only those that have a legitimate business reason to access that information can do so.
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Garnishment & Wealth-Related Questions
Employers should refrain from asking whether the applicant has been the subject of garnishment proceedings or if the applicant owns a home, or rents, or lives with family. These types of questions, although asked to all candidates, may be discriminatory because they may be harmful to minority groups and are not relevant to whether the applicant can perform the job responsibilities for the available position.
Employers should refrain from inquiring about an applicant’s date of birth to avoid the perception that the employer is using age as a deciding factor in the hiring process. The Age Discrimination in Employment Act (ADEA) forbids age discrimination against individuals who are age forty or older. Employers can ask the applicant if they meet the minimum age requirement for the job (such as to serve alcohol), but employers typically do not need to inquire any further. Similarly, it is a best practice to ask an applicant whether he or she earned a degree without asking for the specific graduation date which may reveal the applicant’s age unless the education year is relevant to the applicant’s ability to perform the job.
Employers can ask applicants about their education (schools attended, degrees, vocational training, and certification) if the job requires a particular level of education. However, certain educational requirements exceed what is needed to perform the job responsibilities. As a result, the EEOC scrutinizes educational requirements to determine whether it is a means to exclude minorities even if the educational requirements are consistently applied. This can result in a discrimination claim based on the harmful impact to persons in a protected class (such as if it disproportionately excludes certain racial groups without a legitimate business justification).
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Worker’s Compensation and Disability
The Americans with Disabilities Act (“ADA”) prohibits discrimination against qualified applicants with a disability. Generally, employers cannot ask disability related questions on an application (or require medical examinations, including an alcohol test) until after an applicant has been given a conditional job offer. As a result, you cannot inquire about an applicant’s workers’ compensation history on an employment application before making a conditional offer of employment. Once a conditional offer of employment has been provided to the applicant, the employer may inquire about an applicant’s workers’ compensation history if it is required for all prospective employees in the same job category. Employers cannot use the information obtained to speculate that the applicant will increase their workers’ compensation costs, but can use to withdraw a conditional job offer if the applicant cannot perform the essential functions of the job with or without a reasonable accommodation.
Employers must proceed with caution when asking applicants about their drug and alcohol use on an application because the ADA prohibits employers from discriminating against the disabled, including recovering alcoholics or drug addicts. As a result, employers cannot ask questions about drug and alcohol disabilities and must be careful not to ask questions that may solicit this information. The way employers phrase questions is very important. For example, employers can ask about current illegal drug use, because an individual that currently uses illegal drugs is not protected by the ADA. In contrast, employers cannot ask an applicant about his or her past history and frequency of illegal drug use.
Employers should not inquire about the applicant’s amount of sick leave used in previous positions. The ADA and the Family Medical Leave Act prohibit discrimination and retaliation against applicants who have exercised their rights under these laws.
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Military Service and Military Discharge
The Uniform Services Employment Reemployment Rights Act (USERRA) protects against military service discrimination. An employer cannot deny an applicant employment on the basis of the individual’s military service. Employers can inquire about the dates of military service, the duties performed, the applicant’s rank, and training received. But employers should refrain from asking why an applicant was discharged from the military because the employer may obtain disability information which is protected under the ADA.
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Political Party Affiliation
Currently there are no federal laws that prohibit private employers from inquiring about an applicant’s political affiliation. Regardless, employers should not ask about one’s political party preferences because this information is likely unrelated to the applicant’s ability to perform the requested job responsibilities and may solicit characteristics that are protected, such as one’s religious beliefs.
An individual’s criminal history may or may not be relevant to the qualifications necessary for the job. Even neutral policies and procedures that apply to everyone may be discriminatory if they disproportionately screen out applicants on the basis of a protected status and are not justified by any business purpose. Many states and municipalities (Iowa is not currently one of them) have passed “Ban the Box” laws to prohibit employers from asking about an applicant’s criminal history on an application.
The EEOC takes the position that such inquiries are improper unless the employer can show that the conviction is in some way related to the available position. Further, such inquiries should only be made if it is related to the job and consistent with business necessity based on: 1) the nature of the job, 2) the nature and seriousness of the offense, and 3) the length of time since the offense occurred. The EEOC also requests that employers provide applicants with the opportunity to explain any potentially harmful information.
Whenever employers desire to use a third party company (even one online) to assist with a background check on a prospective employee as a part of its application process, certain steps must be followed, including obtaining the applicant's written consent. See Dig up the Dirt, but Know the Rules of the Game - The Fair Credit Reporting Act and Background Checks for more information about the mandatory disclosures, particular consent forms, and other requirements that must be taken to avoid liability under the Fair Credit Reporting Act. An applicant’s consent to a background check must be obtained on a form separate from the employment application.
DOCUMENT RETENTION
Employers must retain application records (including resumes, applications, reference checks, background checks, etc.) for at least one year from the date the record was made or when the hiring decision was made, whichever occurs later. Note that Federal contractors and subcontractors have additional document retention requirements. If employees are involuntarily terminated, the employer must retain all employment records for one year from the date of termination. Because application documentation must be retained, train your managers to think twice before writing notes and comments on the application forms. Notes that are relevant to an applicant’s skills and qualifications may be recorded, but it is wise to do so on a separate document (employers should, of course, refrain from writing notes such as applicant is “Christian” or “African American” because it shows that a protected characteristic may have been an impermissible factor in the employment decision). Remind managers that an application may be a trial exhibit if a future issue arises.
REASONABLE ACCOMMODATION
Don’t forget that the law may require an employer to provide a reasonable accommodation to applicants that may need one unless doing so would cause an undue hardship to the employer. For example, an applicant may need an interpreter to assist with completing the application. An employer is permitted to ask limited questions about a reasonable accommodation if it reasonably believes that the applicant may need an accommodation (because of an obvious or voluntarily disclosed disability, or where the applicant has disclosed a need for an accommodation). If a reasonable accommodation issue arises, employers should contact a labor and employment attorney for assistance.
BOTTOM LINE
To win the gold medal, evaluate the “what” and “why” of your application questions. If you do not have a legitimate business reason for making the inquiry, you likely shouldn’t do so.
