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“Don’t Ask THAT!” – How to Avoid Illegal Job Application Questions
June 13, 2024
Man at table filling out forms in office setting

Finding qualified candidates who are a good fit for your company is crucial to the success of your business. However, the process isn’t always simple. If you’re not following best practices to shield your business from risk, your search for the right person may land you on the wrong side of employment laws.

It’s important to set the foundation for compliance right from the start – beginning with your job application. This important document is usually the first official record you give to job-seekers. Employers must carefully consider the questions they include and avoid topics that could be viewed as discriminatory under federal, state, and local laws.

Let’s take a closer look at the value of developing compliant job applications and the missteps that can lead to a disgruntled candidate and a subsequent lawsuit from the Equal Employment Opportunity Commission (EEOC).

Make the Most of Your Job Application

A job application is one of the best ways to get standard background information about prospective employees. Unlike resumes that come in different formats and require more time for processing, job applications provide a uniform and consistent way to gather the same information from all the applicants.

Whether you use paper or online applications, you’ll be able to quickly sort through and compare the past employment, education, and qualifications of your job applicants. Questions should focus on job-related issues and protect the privacy and employment rights of all applicants. It’s illegal to ask about certain characteristics protected by law such as gender, age, race, religion, national origin, disability, or marital status.

A Case in Point

In September 2017, Phoenix-based All-Star Priority Staffing, LLC, landed in legal trouble after an EEOC lawsuit charged that the company forced applicants seeking employment "to fill out an invasive medical questionnaire and answer medical questions before job offers.” According to the EEOC's suit, questions about the use of medications, history of illnesses, and injuries violate the Americans with Disabilities Act (ADA).

In light of All Star’s unlawful conduct, the suit is seeking back pay and damages, as well as corrective measures from the company to prevent discrimination in the future.

"Pre-offer medical questioning can have the effect of chilling individuals from applying for employment. The EEOC will continue to fight to protect applicants from being exposed to illegal medical questioning,” stated Elizabeth Cadle, the EEOC's Phoenix District Office director.

This case serves as a strong reminder for employers to stay clear of questions that can lead to discrimination claims.

Do “Ban the Box” and Salary History Laws Affect You?

As the national movement to improve fairness in hiring continues to grow, employers must be aware of new laws that reduce employment barriers for persons with criminal records who have served their time. More than 30 states and 150 cities and counties have adopted “ban the box” laws, which prohibit employers from asking if a candidate has a criminal history on employment applications.

These laws seek to delay inquiries about arrests and convictions until after the employer considers the applicant’s qualifications and determines whether he or she is suited for the job.  Employers can still conduct background checks, but this has to be carried out later in the hiring process.

In a growing number of cities and states, employers also are banned from asking job candidates about their salary history on job applications and during the hiring process. The salary history ban is centered on concerns about gender and race-based discrimination and is designed to prevent employers from using past compensation as a basis for current salary negotiations. If this law affects your business, you should remove all salary history questions from your job applications.

Protect Your Business with Compliant Job Applications

To ensure that you’re collecting the necessary pre-employment information without exposing your business to legal risk, use a job application that:

  • Captures the relevant facts related to the job such as skills, education, employment history, and reasons for leaving the previous job
  • Uses airtight equal employment opportunity language and EEOC-recommended general non-harassment clause
  • Authorizes employment references
  • Makes clear that employment is at will (employee can resign or be terminated by you at any time)
  • Establishes an expiration date so the candidate knows the application won’t be held indefinitely
  • Complies with all federal and state laws (including ban the box and salary history)

The federal and state laws against employment discrimination, in addition to the laws being adopted by cities and counties, make the hiring process far from simple for employers.

You can recruit candidates easily online with state-specific applications that are automatically updated as legal requirements change. The app streamlines the hiring process online while giving you the option to print copies for walk-in candidates.

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Funded, in part, through a Cooperative Agreement with the U.S. Small Business Administration. All opinions, and/or recommendations expressed herein are those of the author(s) and do not necessarily reflect the views of the SBA.

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