by Toni Everton
An increasing number of unsuccessful job applicants are filing discrimination charges, and the Equal Employment Opportunity Commission (EEOC) and state enforcement agencies are taking a close look at job applications for evidence of unlawful bias. So the question is, what can you ask on a job application? This article doesn’t contain an all-inclusive list of what to ask on a job application; rather, it provides guidance on a couple of issues the EEOC and state enforcement agencies have recently questioned.
Gear questions toward job requirements
Generally, the questions on a job application should elicit information necessary to determine if the applicant is qualified for the position. For that reason, it may be helpful to have different applications for different positions. For example, the education and experience requirements for an hourly manufacturing job may be different from the education and experience required for a vice president or other management position in the same company. The job application should be tailored to obtain the information needed for each position.
A good starting point for determining which questions are necessary is the job description. That isn’t to suggest that you should have a different application for each job―that would be an incredibly taxing responsibility. However, the beginning of the new year might be a good time to review the job descriptions for various positions within your company to ensure that your job application is seeking information that’s truly relevant and necessary to assist the hiring manager in determining which applicants to interview. If not, consider creating a second job application to capture information needed for a different category of positions.
And remember, you also can obtain relevant information through employment interviews, so the job application doesn’t need to ask for every piece of information relevant to the job―just enough to weed out clearly unqualified applicants. The application also should have a place for the prospective employee to indicate the position for which he is applying.
Don’t create the appearance of bias
Avoid asking questions that could appear biased against a protected category such as age, race, gender, disability, religion, or national origin. Most employers don’t include a space for date of birth on the job application. However, the EEOC and state enforcement agencies have recently questioned the relevancy of asking an applicant for the date of her high-school graduation. The agencies have determined that high-school graduation date is an age indicator and may be used to deny job offers to applicants who are older than 40. While you may need to know that the applicant completed high school, her graduation date most likely isn’t related to a job requirement.
Another common question that may be deemed discriminatory is the applicant’s availability to work weekends. Unless the ability to work weekends is a job requirement, the inclusion of that information on a job application could be interpreted as discriminating against an applicant based on his religion.
Limit questions about criminal history
Most employers include a section about the applicant’s criminal history on the job application. However, the EEOC is increasingly scrutinizing application questions that inquire about an applicant’s criminal background. While you understandably want to know if a prospective employee has a criminal background, you should limit such questions to criminal convictions and possibly to arrests pending trial (check with your attorney). You should request enough information to determine how long ago a conviction occurred and whether it’s relevant to the job for which the applicant is applying.
The beginning of a new year is a good time to review and revise your job applications. Look at your applications to ensure that they seek only the information required to determine if the applicant has sufficient qualifications to interview for the position.
Toni Everton is a member of Faegre Baker Daniels LLP‘s labor, employment and benefits team in the firm’s Indianapolis, Indiana, office. She assists clients with employment litigation and workers’ compensation matters, including workers’ compensation defense, and she focuses her practice on responding to charges by the EEOC, handling unemployment compensation disputes and handling various aspects of employment litigation. She may be contacted at toni.everton@FaegreBD.com.