WHAT SHOULD YOU AVOID ASKING IN AN EMPLOYMENT APPLICATION?
Application forms play an important role in the hiring process. They introduce a candidate to a company, and at the same time, they give an employer initial information about a candidate. A well-made employment application form gathers pertinent information in a uniform setup that allows employers to easily compare candidates' qualifications. However, in the process of gathering information, employers must be sure to avoid pre-employment questions that violate federal, state, and local fair employment laws. Federal laws that directly affect the content of application forms include Title VII of the Civil RightsAct of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Genetic Information Nondiscrimination Act (GINA), and the Fair Credit Reporting Act (FCRA). Application forms that fail to meet legal requirements expose employers to liability claims and penalties for noncompliance.
Employers should make sure that application forms do not contain questions that are likely to produce information related to legally protected characteristics such as disabilities, medical conditions, gender, and race. Although state and federal equal opportunity laws do not specifically forbid employers from asking questions based on protected characteristics, the questions may be used as evidence of an employer's intent to discriminate, unless the questions can be justified by some business purpose. The Equal Employment Opportunity Commission (EEOC) "generally presumes" that employers will use the information obtained from candidates when making employment decisions.
The following categories of questions are to be avoided before an official offer of employment has been made (application, interview, etc.).
Questions directly relating to disabilities of the candidate. This means that an employer cannot ask questions directly about the candidate’s impairments (“So, why do you have that limp?”). One of the primary goals of the ADA is to rid the workplace of stereotypes that have been obstacles to employment. Instead, the intent of the ADA is to give people with impairments equal access to prove their abilities.
Questions directly relating to disabilities of people connected with the candidate. The employer also cannot ask questions that relate to impairments of candidates’ relatives or significant others (“I don’t suppose your child has any major medical issues that might influence our insurance premiums, does he?”).
Questions indirectly relating to medical conditions. The ADA prohibits any line of questioning during the pre-employment stage that might cause the candidate to reveal information about an impairment. This means that an employer cannot ask about: prior workers’ compensation problems; previous injuries; how often the candidate was absent for a child or family member; current health problems; whether an candidate has ever been on short-term or long-term disability; whether an candidate has ever been hospitalized; whether the candidate has ever sought psychological counseling; whether the candidate has ever been in rehabilitation or been treated for drug or alcohol abuse; or whether the candidate is currently taking any medication.
It's illegal to base your hiring decisions on a candidate's gender. You should never ask questions of women that you don't ask of men or vice versa. Even benign questions about a candidate's maiden name, marital status, children, or pregnancy can raise an implication of biased intent. Even if your questions are motivated by a genuine interest in getting to know a candidate, don't ask questions about such things as the names and ages of children or other family information during an interview.
Never make a comment about a candidate's race, your race, or anybody else's race.We shouldn't even have to mention this, but employers continue to make mistakes here. Even if you and the people who conduct your interviews are not prejudiced and would never think of discriminating against an individual on the basis of race, the minority candidate sitting across the table might believe otherwise.
Avoid asking about a candidate's ability to work on any religious holiday, Friday nights, or weekends. This kind of question may elicit information about an applicant's religious beliefs and should not be asked unless there is a business need for such availability. EEOC guidelines suggest that an employer state the normal working hours for a job and—after making it clear to the candidate that there is no requirement to reveal religion-related absences needed during the scheduled hours—ask the candidate whether he or she is otherwise available to work those hours.
Enforcement guidance issued by the EEOC recommends that employers not ask about convictions on job applications. It is EEOC's position that an employer's neutral policy of excluding candidates based on certain criminal conduct may have a different impact on candidates protected under Title VII. To avoid a violation of Title VII, employers must be able to show that the exclusion is job related and consistent with business necessity. One way to satisfy this requirement is to develop a targeted screen that takes into account the nature of the crime, the time elapsed, and the nature of the job.
As a general rule, the information gathered through the pre-employment process should be limited to those essential for determining if a individual is qualified for the job; whereas, information regarding race, gender, national origin, age, and religion are unnecessary in such determinations. As long as your decisions are not driven by discriminatory reasons or the result of policies and procedures that have a negative impact on a protected group, you are free to choose among equally qualified candidates. You have the final discretion to choose among candidates even if their qualifications for the job are different but basically equivalent.
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