NEW YORK—Employment applications are the “necessary evil” all employers must have as a part of their talent acquisition process. While seemingly innocuous, they can easily contain unlawful inquiries that can create unintended consequences for companies.
A general theme of federal and state laws, regulations and guidance is that employers should avoid asking questions that elicit information from a prospective applicant that cannot be considered in making a hiring decision.
Here’s a list of the top 10 mistakes to avoid in any talent acquisition materials:
- Eliminate any disability-related or medical questions. Employers should steer clear of questions related to whether an employee is disabled or has a medical condition. Any such inquiry would violate guidance from the U.S. Equal Employment Opportunity Commission (EEOC) and possibly the Americans with Disabilities Act (ADA) and similar state laws. If an employer asks an applicant such a question, the EEOC or a court may presume prohibited information was a factor in hiring.
- Include an at-will disclaimer. We advise all client companies to inform applicants that the application is not intended to and does not create a contract or offer of employment and state that, if hired, employment with the company would be on an at-will basis and could be terminated at the will of either party. This disclaimer is helpful to avoid any claim that the application is an offer of guaranteed employment or to defend a claim of breach of contract if the employee is not hired or is later discharged. We also advise including this language in any additional talent acquisition and onboarding materials. This is one area that redundancy favors employers.
- Always include a nondiscrimination statement. Employers should always inform applicants that the company is an equal opportunity employer and that the company does not discriminate in hiring based on federally-protected status, including, race, color, national origin, ancestry, religion, sex, disability, veteran status, age [40 or over], or genetic information. Employers should also add information associated with other protected classifications under state or local law (e.g., sexual orientation or marital status).
- Eliminate sections seeking graduation dates in the education section. Asking applicants for graduation dates—usually in the education section of the employment application where seeking degrees obtained) may lead to a finding of discriminatory intent on the basis of age under the Age Discrimination in Employment Act (ADEA) or state law, particularly if the employee's graduation date has no bearing on the qualifications for the position. Having this question enables the hiring manager to guess the age of the applicant, thus running the risk of a potential age discrimination claim. As is always the case, it is appropriate to ask questions regarding the experience of the applicant if it is relevant to a job qualification.
- Do not ask questions about arrests and convictions, without appropriate disclaimers. A number of states and local jurisdictions expressly prohibit employers from asking about applicants' criminal histories on employment applications (these are called "ban the box" laws). EEOC guidance further recommends that employers not ask about convictions on job applications, but, if they do, to limit their inquiries to convictions for which exclusion would be "job related for the position in question and consistent with business necessity."
The EEOC discourages employers from asking about arrests on applications at all, because it reasons that the fact that an individual was arrested is not proof that he or she engaged in criminal conduct. The EEOC also has taken the position that an arrest record, standing alone, may not be used to screen out an applicant, but an employer may make an employment decision based on the conduct underlying the arrest if the underlying "conduct makes the individual unfit for the position in question." Employers should use caution in this area.
- Separate any background check acknowledgement from the employment application. Under the Fair Credit Reporting Act (FCRA), the disclosure of an employer's intent to obtain a background check and section must be in a "stand-alone" document separate from the application.
- Clearly include language telling applicants how to request a reasonable accommodation to apply or participate in the interview process. The ADA imposes a duty on employers to provide reasonable accommodations to applicants during the application process to ensure equal access to available positions. In light of this obligation, employers may consider instructing applicants on how to initiate that process independent of the employer's online application system and hiring manager.
- Do not ask for a photograph. Guidance from the EEOC prohibits employers from asking applicants for photographs. If needed for identification purposes, an employer may obtain a photograph of an applicant after the applicant accepts an offer of employment.
- Do not ask about marital or familial status. Asking questions about an applicant's marital status, the number of kids he or she has, the ages of his or her children or dependents, or provisions for child care could be construed as discrimination on the basis of sex. Furthermore, in many states, marital or familial status is a protected classification about which employers may not inquire during the application process, similar to the federally-protected classifications listed above.
- Do not ask about citizenship. The antidiscrimination provision of the Immigration Reform and Control Act prohibits employers from discriminating against an applicant because he or she is not a U.S. citizen. The Form I-9, rather than an employment application, is the appropriate forum to determine an applicant's citizenship status. Rather than asking about citizenship, employers may want to ask if an applicant is legally qualified to work in the U.S.
Employment applications are not only one of a company's first contacts with applicants and new employees, they are also written documents that can later be used as evidence in an adversarial proceeding. Avoiding these common blunders can help employers maintain best practices for employment application materials and your talent acquisition process.
Lastly, it is recommended that you train all employees that are involved in the talent acquisition process, including the 10 points listed above.
Hedley Lawson, Contributing Editor
Aligned Growth Partners, LLC