Employment Applications—What to Avoid!

Has your organization considered your employment application from a legal standpoint? Sure, it needs to have enough questions to get all the information needed to assess the candidate, but what questions may present legal problems or employee privacy issues? Business consultant Bridget Miller has some advice for our readers.

From a legal standpoint, one of the primary issues for organizations is the appearance of discrimination. Therefore, it’s usually best practice to avoid including application questions that would give the employer information that could be used in a discriminatory way—even if the potential for discrimination is not intentional.

Here are some examples of the types of questions to avoid and why.

AVOID: Questions that Directly or Indirectly Reveal the Applicant’s Age

The primary reason that employers think they need to ask for an employee’s age is to determine whether the applicant is old enough to legally work. This can be handled with a simple “Are you over the age of 18?” (Of course, substitute another age if there is a different minimum age requirement for the job.)

Asking for a person’s age can imply that the organization might use age as a factor in the hiring process. Doing so might put the employer at risk of accusations of being in violation of the Age Discrimination in Employment Act (ADEA).

Be aware that many questions can tell an employer about an applicant’s age indirectly—and these types of questions should be avoided, too. For example, don’t ask for a candidate’s year of graduation. When asking about education and experience, focus on the details of the experience itself—not on the specific dates the applicant completed it.

You’re looking at your employment application…but how about your job descriptions? Join us on August 13 for an informative webinar on using correct language to use when drafting job descriptions, Drafting ADA-Compliant Job Descriptions: Must-Have Tips to Avoid Lawsuits. Learn More

AVOID: Questions that Reveal Medical or Disability Information

Regardless of whether an applicant has a visible disability, it’s usually not a good idea to ask any questions related to medical or disability status.

If there are concerns about an applicant’s ability to do the job, focus on questions that relate to exactly that—the job responsibilities. Ask if the applicant is able to perform the listed essential functions of the job.

Much like indirect questions about age, there are indirect ways that medical information can be divulged. For example, avoid asking questions about military discharge—doing so could inadvertently uncover medical or disability status.

AVOID: Questions that Relate to an Applicant’s Protected Activities, Such as Former FMLA Leave or Workers’ Compensation

Naturally, an employer wants to avoid Family and Medical Leave Act (FMLA) and workers’ compensation fraud, but asking about an applicant’s past history with these types of activities is no guarantee of preventing fraud—and it may appear discriminatory or retaliatory against an individual who has utilized his or her protected rights. If the questions are seen as discouraging such activities, it could also be construed as interfering with the individual’s ability to take leave in the future. It’s smarter to simply avoid any queries that might reveal that an applicant previously used FMLA leave or workers’ compensation benefits.

Get must-have tips to avoid lawsuits on Thursday, August 13 in a new interactive webinar, Drafting ADA-Compliant Job Descriptions: Must-Have Tips to Avoid Lawsuits. Earn 1.5 hours in HRCI Recertification Credit and 1.5 hours in SHRM Professional Development Credit. Register Now

AVOID: Any Other Question that May Reveal an Employee’s Inclusion in a Protected Class

This means avoiding asking about religious beliefs, race, color, national origin, nationality, place of birth, ancestry, citizenship status, or participation in non-work-related organizations (which may reveal status in a protected class).

For those employers that need to track racial data to remain in affirmative action compliance, they may do so, but should not do so as part of the application.

If there is a concern about the applicant’s eligibility to work in the United States, that can be asked, but it should be asked directly, not by inquiring about nationality or citizenship.

In tomorrow’s Advisor, Miller shares a few more inquiries your application shouldn’t touch with a 10-foot pole, plus an introduction to an informative webinar on compliant job descriptions, Drafting ADA-Compliant Job Descriptions: Must-Have Tips to Avoid Lawsuits.