Q: What types of questions are employers prohibited from asking in an employment application?
A: There are a variety of questions that employers should avoid asking in employment applications. Some of the most common mistakes employers make concern inquiries into an applicant's medical history--such as asking whether the applicant ever filed a worker's compensation or disability claim or has ever been hospitalized, and if so, for what condition. The Americans With Disabilities Actstrictly prohibits employers from asking applicants any questions that would reveal whether an applicant has a mental or physical disability. Employers should provide the applicant with the essential job functions of the position applied for and inquire whether the applicant can perform those essential job functions with or without a reasonable accommodation.
Employers also should not request the applicant's age, date of birth, dates of high school or college graduation, or any other information that would tend to identify applicants over the age of 40. Such questions may violate the Age Discrimination in Employment Act. An applicant's religion is another topic that is off-limits. Employers may not inquire about an applicant's religion or religious days observed. If there is a requirement that the applicant will have to work weekends, the application can state the regular days, hours or shifts to be worked and inquire whether there is any reason that the applicant could not fulfill those requirements.
Questions about an applicant's arrest record have been found to be discriminatory. Statistics show that certain demographic groups have a greater likelihood of being arrested. An employer can inquire into whether the applicant has ever been convicted of a crime, but should also state that a conviction will not necessarily disqualify the applicant from employment. If an applicant has been convicted of a crime, the employer must determine whether the conviction is related to the position for which the applicant applied.
Some other examples of impermissible questions include inquiring whether an applicant is pregnant or has children. Such questions violate Title VII's prohibition against sex and pregnancy discrimination. Similarly, an application should not request an applicant's maiden name. A number of states consider marital status to be a protected classification, and such questions may be discriminatory.
An employer also should not ask for an applicant's Social Security number, absent a legitimate reason for such information. Contrary to popular belief, the possession of a Social Security number is not a prerequisite for working in the United States. Immigration laws provide for a variety of documents that an employee can present to demonstrate identification and eligibility to work in the United States. Those documents are detailed in the Form I-9 that employees must complete in order to be employed. An employer can ask for an applicant's Social Security number if it has a legitimate reason to know such information, such as to conduct a background check consistent with the form and scope of such inquiries under the Fair Credit Reporting Act.
Finally, given the United States' involvement in Iraq and Afghanistan, there are an increasing number of discrimination claims being asserted by individuals of Middle Eastern descent. Employers must not ask any questions that require an applicant to disclose his or her national origin or ancestry, including asking applicants to provide their place of birth. Likewise, employers cannot require that an applicant provide a picture of himself or herself along with the application, absent a legitimate business reason for the picture.
Employment applications are designed to elicit information relevant to the job for which the applicant applied. Questions that go beyond the applicant's qualifications, even if they appear neutral on their face, can be discriminatory if they require the disclosure of information that may be found to adversely impact a particular group of applicants.
Additional reporting by Michael Lungaretti
Note: The information in this column is provided by the author, not Entrepreneur.com. All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.
Larry Rosenfeld is co-chair of the national labor and employment practice of the law firm Greenberg Traurig LLP. A frequent writer and lecturer on employment law topics, Rosenfeld is experienced in the areas of federal laws pertaining to employment issues, EEOC, ADA, termination matters, employment liability and the Fair Labor Standards Act.