When it comes to sharing information on a job application, there are some questions that should be off-limits. Employers should be aware that there are quite a few illegal job application questions that could lead to legal troubles and lawsuits. Employers should familiarize themselves with the types of questions that can legally be asked on an application in order to avoid employment discrimination.
Applicant’s Age
Can an employer ask your age on a job application? The answer is no. The Age Discrimination in Employment Act protects employees 40 years of age and above. Job applications cannot ask for the candidate’s date of birth. Generally speaking, age is not relevant in most hiring decisions. There is an exception for young candidates who are under the age of 18. An employer may ask if they are at least the minimum age required for employment. After hire, the employer can verify this information with a birth certificate or another form of ID.
While it is illegal to ask for a date of birth on job application forms, asking about graduation dates to gauge a candidate’s age is poor practice. Asking for graduation dates can reveal an applicant’s age. If educational attainment is important to the job, it is best to simply ask if the applicant graduated and which degree was obtained. Once the employee is hired, they will need to disclose their date of birth for I-9, W-4, and insurance documentation.
Criminal History
The Equal Employment Opportunity Commission (EEOC) has decreed that questions regarding arrests or criminal history are improper unless the applicant is being considered for a security-sensitive job. These include:
- nurse
- lawyer
- social worker
- law enforcement officer
- certified public accountant
Questions about an applicant’s criminal record are illegal unless the employer can prove that the conviction or history is related to the position. For example, accountants, licensed brokers, and investment advisors should not have any criminal history related to fraud or embezzlement.
Most employers are naturally concerned about employee and customer safety. The best way to obtain this information is simply to include an employment gap section in the application.
Disabilities and Medical Conditions
Job applications cannot have any questions related to disabilities and physical traits. The Americans with Disabilities Act (ADA) prohibits any inquiries about past or current health problems and medical conditions. Even asking for the individual’s height and weight have been found to violate the law in certain situations that discriminate against certain demographic groups.
Certain positions do require physical fitness tests, such as a firefighter. Other positions require medical checkups, such as truck drivers. Employers must be able to show that physical standards are a necessary job requirement and directly related to job performance and functionality. Employers may ask if candidates can perform the essential job functions with or without accommodations.
Gender
Illegal questions on job applications include those that ask about gender. A sexual discrimination lawsuit can easily be filed if an application asks for the applicant’s gender. This is especially true when it comes to a position that is dominated by males. An application cannot ask about whether an individual has children or not.
Many HR professionals like to break the ice of interviews by asking candidates about their families and hobbies. While this is quite normal and personable, it can lead to serious problems. Some employers like to ask if an applicant has or is planning to have children because they want to know if they will need to take off time in the future.
Race and National Origin
Can you ask race on a job application? Title VII of the Civil Rights Act of 1964 protects employees and applicants from discrimination based on:
- race
- color
- religion
- sex
- national origin
The Equal Employment Opportunity Commission states that employers should not request information that discloses an individual’s race unless there is a legitimate business need for that information. Some employers unfortunately use pictures or ethnicity questions to profile minority applicants. Employers who require applicants to submit a picture will most likely face a racial discrimination lawsuit in the future.
If an employer needs to track their applicant’s race for affirmative action plans, this should be done separately from an application. The employer can use a separate document or tear-off section to protect the information so it is not used in the selection process. Applicants should never be required to provide this information.
Religion
It is illegal to inquire about a candidate’s religion unless there is a bona fide occupational qualification. It is illegal to make a job decision on the basis of religion. In fact, employers must make reasonable accommodations for employees’ religious practices. The employee is responsible to make the request.
Military Discharge
While it is not illegal to ask about military discharge, these may be considered inappropriate interview questions. Employers should carefully consider whether the information is relevant to the job. If the information is not relevant, it could create potential bias. Hiring decisions should not be solely based on military discharge status according to the EEOC. Care should be taken to avoid discriminatory practices.
Sexual Orientation
Other potentially illegal questions on a job application form include those related to sexual orientation. While Title VII of the Civil Rights Act of 1964 doesn’t explicitly prohibit discrimination based on sexual orientation, several states have enacted their own laws that offer this protection. It’s generally advised to focus on job-related qualifications during a job interview rather than focusing on personal characteristics.
If the rationale for asking about an applicant’s sexual orientation is to promote diversity in the workplace, it is best to focus on policies and practices that support an inclusive work environment.
Marital Status
As we have mentioned previously, it is generally best practice to avoid non-job-related questions. Questions about marital status or the ages of children could be considered evidence of intent to discriminate against protected groups, such as women. These inquiries can be made after hire, such as during the insurance enrollment process.
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