Whenever you’ve got new applicants, you always want to start them off on the right foot. One of the most critical aspects of this is ensuring that your application form doesn’t put you in any legal trouble.
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Let’s take a look at which federal laws affect application forms and some tips on how to stay compliant.
Several of the federal laws that come into play on application forms are antidiscrimination regulations, such as:
Title VII of the Civil Rights Act of 1964
Title VII protects employees and applicants from discrimination based on race, sex, color, national origin, and religion. As such, it is not advisable to ask about any of these things on an application, as doing so might give rise to a fear of a discriminatory purpose for the query.
Employers should also ensure no discriminatory preference is stated in the job advertisement.
Title VII also has regulations on how long applications must be kept. These apply for all applications, not just for applications of the individuals who were later hired.
Americans with Disabilities Act (ADA)
The ADA prohibits discrimination against qualified individuals with a disabilities. Most employers know that employees with disabilities are entitled to reasonable accommodations as noted in the ADA, and applicants are afforded this same benefit. Want an example of how an applicant might need accommodation? One example noted on the Equal Employment Opportunity Commission’s website is a sign language interpreter to assist an applicant with an application[i] or with the application process.
One tip for employers for ADA compliance: Be consistent in any tests that are required as part of the application process. If the employer requires proof of the ability to perform the job, that proof should be required of all applicants, not just those who may appear to be disabled in some capacity. If any form of proof is required by the employer, an individual may request reasonable accommodations to be made and the employer must comply.
Age Discrimination in Employment Act (ADEA)
Under the ADEA, employers must not discriminate against individuals over the age of 40 in the application process. (There are rare exceptions where age is considered to be a “bona fide occupational qualification,” however.)
One way employers have been avoiding the appearance of age discrimination on applications is by ensuring the application does not ask for the applicant’s birth date. Instead, it makes more sense to ask whether the individual is of legal age to work and to pose it as a yes or no question. It can also be helpful to remove any reference to year when asking about educational background, since the year of graduation can be a strong indicator of the applicant’s age.
Genetic Information Nondiscrimination Act (GINA)
Under GINA, employers cannot discriminate against employees or applicants on the basis of any genetic information.
This may not come up often in the application process, but one way to avoid it is to steer clear of any medical questions on the application itself, even if a medical exam will be required later.
In addition to antidiscrimination regulations, the Fair Credit Reporting Act (FRCA) is also relevant for applicants. Employers who conduct background checks as a part of their application process will need to follow FRCA regulations that outline the rights and responsibilities of each party involved.
One tip for employers: Receive written authorization from applicants to conduct a background check, and do so separately from the application itself.
Employers should also understand their obligations in terms of furnishing the background check information to the applicant as well as giving the applicant the opportunity to rectify any false information therein. Familiarize yourself with all of the components of the FRCA before conducting background checks even if you’re using a third party for the background check itself.
Have you updated your application form in response to legal needs? What other changes have you made in the past to ensure your applications are legal?
*This article does not constitute legal advice. Always consult legal counsel with specific questions.
About Bridget Miller:
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.