Your hiring process for job applicants most likely includes some kind of employment application form. Resumes and cover letters are great to have, but a job application form provides an opportunity to collect additional information about the person’s employment history, work background, contact information, and more for human resources purposes.
While it’s generally a great idea to require an application for employment from your candidates, there are some guidelines—and in some states, laws—around what you can and cannot ask.
Therefore, it’s important to ensure the questions you are asking don’t pose a risk for legal action against you by the Equal Employment Opportunity Commission (EEOC), or your local government.
Note: Many laws do not explicitly state that you are prohibited from asking certain questions on a job application template specifically, but they can be used as evidence of intent to discriminate. For this reason, they should be avoided.
Remember, this is not official legal advice. If you have questions, it’s best to consult an HR expert or an employment attorney.
As you most likely know, discrimination against employees and job applicants is illegal on the federal level:
“The laws enforced by EEOC makes it unlawful for federal agencies to discriminate against employees and job applicants on the basis of race, color, religion, sex, national origin, disability, or age.”
To make it simple, you cannot ask any questions that reveal an applicant’s:
- Sexual orientation or gender identity
- Country of origin
- Marital status
- Family status
Your state may also have its own discrimination laws with additional protected classes. Take a look at your state labor law guide to get the full list in your area.
Job-related questions only
When determining what to include on your application, run each question through this test: “Can I prove that I have a job-related necessity for asking the question?”
If for any reason the EEOC reviews your employment form, they will examine the intent behind each question and how you use the information to determine if any discrimination is taking place. Take a look at your list of questions and make sure each one is absolutely necessary to determine the level of qualifications, skills, and job competence.
It’s also a good idea to periodically review your application to avoid accidentally falling out of compliance with any new laws that might be put into place.
Bona Fide Occupational Qualification
If your job description prevents a certain class of employee from performing the job correctly or safely, you may have a case of Bona Fide Occupational Qualification (BFOQ).
In other words, you are allowed to include certain questions that may otherwise be discriminatory if an applicant’s “religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”
Here are a few examples that could be allowed:
- A clothing company that sells menswear may require models to be male
- A religious school may require faculty members to be of the same denomination
- Fire departments may require that firefighters be able to lift a certain weight
Common employment application form questions to avoid
While you might not think your employment application form is discriminatory, many employers make similar mistakes in their list of questions.
Birthdate or graduation date
Asking for an applicant’s birthdate or graduation date, which can reveal their age, can lead them to believe that you are taking their age into consideration when deciding who to hire.
If there is a minimum age requirement under federal or state law, ask instead if the applicant is at least the minimum age needed for the position.
If you’d like to know whether or not the applicant holds a diploma or degree, you can ask if they have graduated and what their level of education is.
Military service discharge information
You are allowed to ask questions about an applicant’s military history to determine experience and training. However, questions about their discharge—like “what type of discharge did you receive?”—could result in you learning medical disability about them. That information is protected under the Americans with Disabilities Act.
You could also face charges under state military discharge anti-discrimination laws. If you want to learn about an applicant’s military history, it’s best to ask about their:
- Military service dates
- Duties performed and work experience
- Rank during service at the time of discharge
- Training received
Sick days used at other jobs
Avoid asking how much sick leave the applicant has taken in the past. It is illegal to discriminate against someone for exercising their rights under both the Family and Medical Leave Act (FMLA) and the ADA.
Any questions asking about an applicant’s race, color, or national origin should be left off your application. You may want to track race among your staff for affirmative action, pay data reporting, or other laws, but it should not be a part of your employment application form.
Instead, use a separate form and ensure the applicant that participation is voluntary. You also may not use the information to determine whether or not the applicant is hired.
Marital or parental status
There are currently 26 states with marital status protections, 4 with parental or pregnancy status protections, and 16 with both. If you operate in one of these states, don’t include any questions asking whether or not they are married, have children, or if they are pregnant.
One common mistake is to ask for the applicant’s maiden name, or to include the options for Miss, Mrs., and Ms. Take a look at the chart below to determine your state’s rules.
Nineteen states prohibit employers from asking about an applicant’s previous wage history in an effort to promote pay equality. If you operate in one of these states, you cannot ask on your employment application form what they have made in the past.
The chart below also signifies if your state has a salary history ban.
Fourteen states have implemented “ban-the-box” laws that prevent employers from asking applicants about their criminal history in order to prevent people convicted of a crime to be passed over automatically for jobs.
You can see which states have “ban-the-box” laws in the chart below as well.
If you see an “x” next to your state and underneath a column, it means you must follow that law and you are prohibited from asking questions about:
- Marital status protection: You cannot ask questions that would reveal if the applicant is married or discriminate against married applicants.
- Parental or pregnancy status protection: Questions can’t be included that ask if the applicant has kids or is pregnant.
- Ban-the-box law: You cannot ask about an applicant’s criminal history.
- Salary history ban: Inquiries about how much money an applicant made at a previous job are prohibited.
|State||Marital status protection||Parental or pregnancy status protection||Ban the box law||Salary history ban|
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