Employers should be aware that there are quite a few illegal job application questions that could lead to legal troubles and lawsuits. It’s important for employers familiarize themselves with the types of questions that can legally be asked on an application in order to avoid employment discrimination.
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 with the exception of young candidates who are under the age of 18. Most HR professionals simply calculate the candidate’s approximate age by asking for the year that the candidate graduated from high school and college in the education section. Once the employee is hired, they will need to disclose their date of birth for I-9, W-4 and insurance documentation.
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 and even a certified public accountant. Questions about an applicant’s criminal record are illegal unless the employer can prove that the conviction or history are 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, so the best way to obtain this information is simply 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 fire fighter, and medical checkups, such as truck drivers. Employers must be able to show that physical standards are directly related to job performance and functionality. Employers may ask if candidates can perform the essential job functions with or without accommodations.
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. Related to this, applications 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 family and hobbies, which is quite normal and personable, but this 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
Title VII of the Civil Rights Act of 1964 prohibits employers from asking about ethnicity, race and national origin. While these questions are quite common in most non-Western countries, they are still very improper. Employers who require applicants to submit a picture will most likely face a racial discrimination lawsuit in the future. Some employers unfortunately use pictures or ethnicity questions to profile minority applicants. In addition to this, it is illegal to inquire about a candidate religion. Employers must make reasonable accommodations for employees’ religious practices, but the employee is responsible to make the request.
Finally, one of the more innocent appearing illegal job application questions is regarding credit history and wage garnishments.