With the national and local economic downturn, an increasing number of unsuccessful job applicants are filing discrimination charges, and the Equal Employment Opportunity Commission (EEOC) and state law enforcement agencies are examining job applications more closely for evidence of unlawful bias. The focus of these agencies has not radically changed, but in making your revisions, you should (1) focus on making sure that the questions you ask are relevant to the position, (2) refrain from asking questions that might be interpreted as biased or that could result in an adverse impact on a protected class, and (3) be particularly cautious when asking questions about criminal history.
Information relevant to job qualifications
As has always been the case, the EEOC emphasizes that an application shouldn’t seek information that isn’t relevant to the position. Thus, you should include only questions that are truly relevant and necessary in helping you determine which applicants to interview.
In determining what kind of information to seek, start by dividing your job descriptions into groups based on the skills and knowledge required for each job. Next, examine each group and create questions that reflect the essential duties of that job category. You don’t need a different application for every position in your company, but the process may require you to develop two or three separate applications designed to focus on qualifications for a specific group of jobs with similar required skills or experience.
Questions that create an appearance of bias or result in adverse impact
Recently, the EEOC has questioned the relevance of asking for an applicant’s high-school graduation date, even when a high-school education is a bona fide job requirement. That’s because a high-school graduation date (1) is an age indicator that could be used to deny job offers to applicants who are over 40 and (2) most likely isn’t related to any job requirement. Another common question that may be viewed as discriminatory is an applicant’s availability to work weekends when weekend work is rarely, if ever, required for the position being sought. Carefully review your current application and eliminate those types of questions.
Questions about criminal history
About a year ago, the EEOC issued guidance on considering arrests and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. The guidance recognizes there are legitimate reasons for not hiring someone based on his criminal history, including safety and protection of property. However, the guidance stresses that employers shouldn’t establish a blanket rule that prohibits hiring anyone with a criminal record for any position regardless of the crime. The information you seek must be job-related and consistent with business necessity.
The guidance emphasizes that (1) the use of criminal history should be focused so that only a conviction for a specific crime within a limited time period can disqualify a person for a particular position and (2) the disqualifying crime must be related to the requirements of the position. Perhaps most important, under the guidance, an individual must be afforded an opportunity to offer additional information about a conviction and why it shouldn’t disqualify him from a job―and the employer must consider the information. Limit your questions to convictions and, in some limited situations, to pending charges awaiting trial. To view the EEOC’s guidance, visit www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
Bottom line
In revising your employment applications, take care to (1) avoid questions that might create the appearance of bias or of excluding members of a protected class and (2) limit questions about criminal history, offering those who are excluded on that basis an opportunity to explain why they should be considered for the job. Doing so will go a long way in avoiding issues with the EEOC.
Robert Tinnin is a founding partner with Tinnin Law Firm, A Professional Corporation, in Albuquerque, New Mexico. He may be contacted at rtinnin@tinninlawfirm.com.