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, such 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.
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 you can ask applicants if they are at least that required minimum age 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, you can simply ask if the applicant has graduated and what degree was obtained.
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). 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 or color should not be asked on an employment application. Some employers may track their applicants' race for affirmative action plans or compliance with the Uniform Employee Selection Guidelines, 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 country 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 circ*mstances 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.: Virginia prohibits marital status discrimination, making any questions related to that status possible evidence of discriminatory hiring practices.
Arrest Record: Inquiries about an applicant's arrest record are not advised. After all, an individual is presumed innocent until proven guilty. It is permissible to ask about criminal convictions. The conviction of certain "barrier crimes" will disqualify individuals from certain jobs in the health care industry and the care of children or the aged.
Avoiding these types of questions on your employment application can reduce the risk of discrimination claims associated with your hiring process.
SESCO Management Consultants is available to assist with your human resource issues. You may contact us by phone at 423-764-4127 or by email at sesco@sescomgt.com .
