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Earlier this month, the U.S. Bureau of Labor Statistics reported that the unemployment rate dropped to 5.9 percent, the lowest it’s been since July 2008, and employers added 248,000 new jobs to their payrolls. Given the uptick in hiring, it is a good time for employers to review their job applications.
The specific purpose of a job application is to ascertain basic information regarding an applicant’s qualifications and background. The application should be structured to achieve this purpose without requesting potentially discriminatory information which would have little or no bearing upon the applicant’s ability to perform the job.
Here’s a (non-exhaustive) list of some do’s and don’ts for job applications:
- DON’T ask for maiden name, prior married name, marital status or spouse’s name; DO ask for “Other Names”;
- DON’T ask for number and/or age of children; DO ask about availability for certain work days or hours;
- DON’T ask for age or date of birth; if needed, DO ask if applicant is 18 years or older (or 21 years or older if required);
- DON’T ask about health history/potential disabilities; if needed, DO ask if applicant can fulfill physical, time and skill requirements of position with or without accommodation;
- DON’T ask blanket question about all organizational memberships and affiliations, or licenses; if required for position, DO ask for relevant experience, professional license or membership pertaining to the job;
- DO ask about military experience;
- DO ask about education and experience;
- DON’T ask about the candidate’s country of origin or citizenship; DO ask if the candidate is authorized to work in the United States;
- DO include a statement that the job application does not create a contract of employment and the job is at-will;
- DO include a statement that “[w]e are an equal opportunity employer and all qualified applications will receive consideration for employment without regard to race, color, religion, sex, national origin, disability status, protected veteran status, or any other characteristic protected by law.”; and
- DO request the applicant’s signature.
Depending on the job, an employer may also want to ask about an applicant’s criminal record. The Equal Employment Opportunity Commission holds the position that an employer’s reliance on arrest and conviction records alone (without any individualized assessment) may result in disparate impact discrimination.
Federal contractors and subcontractors covered by the Office of Federal Contract Compliance Programs’ (“OFCCP”) regulations will need to satisfy some additional standards for their job applications. These requirements include inviting job applicants to voluntarily self-identify their race/ethnicity and gender and whether or not they are an individual with a disability or a “protected veteran.” The OFCCP has defined the contents of these invitations to self-identify, which can be included in the application material, but should not be part of the job application itself. The information obtained through the self-identification should be maintained separately and confidentially for use in connection with the contractors affirmative action program.
The bottom line is that it is reasonable to assume that hiring decisions are made on the basis of the answers given to questions on the job application. Employers should determine whether the information being sought in the job application is absolutely necessary. If the answer to a question does not provide job-related information or determine a person’s qualifications, it may be better not to ask the question.
