Q: How can my job application cross the legal line?
A: At every stage of hiring and employment, an employer must comply with anti-discrimination laws, including job applications. Ask the wrong types of questions and your job application could lead to liability.
Questions you should not ask on job applications
Do not include questions that will produce a response that would indicate an applicant’s protected class such as sex, age, race, national origin or disability on an application. Although not directly prohibited, these types of inquiries may be used as evidence of an employer’s intent to discriminate. Examples include:
Race/sex/gender: An applicant’s sex, gender, race, color or national origin should not be asked. This includes questions related to marital status such as Maiden name, Miss, Mrs. and Ms.
Age/birthdate/graduation dates: You may verify if the applicant is 18 or older.
Type of discharge from military service: An employer should not ask an applicant the reason he or she was discharged. Military discharge questions could result in obtaining medical disability information. An employer is permitted to make inquiries on the dates of military service, duties performed, rank during service at the time of discharge, training received and military work experience.
Disability/health: Do not ask questions on the application about disability or health. Medical/physical exams are allowed after you have made a conditional offer of employment. An employer may ask the applicant’s ability to perform the essential functions of the job, with or without reasonable accommodation.
Birthplace/citizenship: It is permissible to ask if an applicant is authorized to work in the United States.
Social Security number: Although asking applicants for their Social Security numbers is not unlawful, requesting this information from applicants is not recommended due to identity theft and privacy concerns. Employers do not need this information until it is time to run a background check or complete a W-4; therefore, including it on an application carries unnecessary risk. In addition, some states require security measures to be in place if applications asking for Social Security numbers are transmitted electronically or mailed without being in a sealed envelope.
Criminal history: Ban the box
Some states and local municipalities restrict employers from asking criminal background questions during the hiring process to protect candidates convicted of a crime from automatic disqualification during the selection process. Some laws apply only to applicants seeking employment within the jurisdiction, some limit the timing and substance of permissible inquiries, and some have mandatorydisclaimer and job posting requirements.
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| This map highlights states where state laws — not local or municipal laws — restrict employers from asking criminal background questions. |
For all ban the box states, it is important to understand that you are still allowed to conduct a background check on an otherwise-qualified individual. Also, you are not required to hire an individual with a criminal record. Rather, you must make every effort to shift the criminal history inquiry from the initial application stage to later in the hiring process.
Salary history
Multiple states and some local municipalities prohibit an employer from requesting salary history information from candidates. These laws are designed to promote greater pay equality by forcing employers to develop salary offers based on job requirements and market pay levels.
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| This map highlights states where state laws — not local or municipal laws — prohibit an employer from requesting salary history information. |
Legal questions and disclosures employers should ask
Applications should include certain disclaimers and ask certain questions. Examples include:
- Existence of an applicable non-compete agreement.
- Disclaimer that the application is limited to a specific opening at a specific time, shielding your company from liability for claims outside those parameters.
- False statement warning to notify prospects that submitting false information will not be tolerated.
- Other important disclosures that protect you from liability, such as an at-will employment statement and release to check references.
Legally compliant job applications are critical. Otherwise, you could be accused of discrimination, undermining your company’s well-intentioned hiring efforts.
This column is provided by Ogletree Deakins, Atlanta, as part of a partnership with the American Rental Association (ARA) for ARA’s Human Resources Assistance Program. ARA members can receive a single sign on from the ARA webpage to a microsite specific to ARA on the Ogletree Deakins platform; get access to two 30-minute calls with an HR professional per year; access to an FAQ section as well as to Ogletree Deakins’ library of webinars; and access to Ogletree Deakins’ ARA-specific webinars. Visit ARArental.org/Manage-Business/HR to learn more.