Overview: Discrimination is prohibited in all aspects of the selection process, including with an employer's initial job application form. As a result, employers should use the same application form for all applicants.
Questions about age, gender, race, religion, national origin or disability status should not be part of any application form. Certain inquiries that are not intended to discriminate may still have the effect of doing so such as asking candidates when they graduated from high school.
However, there are limited exceptions where employers may ask about these characteristics solely to track applicant flow for EEO/affirmative action purposes or if the information sought is truly job related and consistent with business necessity.
Trends: Several states and many of the nation's biggest cities have passed so-called "Ban the Box" measures that ban employers from asking candidates on an initial job application form if they have ever been convicted of a crime. While the majority of these laws are limited to public employers or city job applications, an increasing number of jurisdictions are enacting "ban the box" measures that extend to private employers.
The EEOC addressed this issue in 2012, and said employers should not make such inquiries because doing so may set up automatic barriers to the workforce to applicants who might be fully rehabilitated. However, an employer generally may seek criminal background information later in the process, even in states with Ban the Box laws.
On another note, the increased use of online applications has added a new wrinkle that raises additional legal questions. For instance, many employers use computer software to sort through these applications. Depending on the nature of the sorting software used, it may be viewed as a preemployment test subject to antidiscrimination laws if it has the effect of screening out certain classes of job applicants.
Author: David B. Weisenfeld, JD, Legal Editor
Updated to reflect forthcoming Los Angeles and Connecticut 'ban the box' laws applying to private employers.
Updated to include new hire requirements under the state's pregnancy accommodations law, effective August 10, 2016.
Updated to reflect 'ban the box' law, effective January 1, 2017.
Connecticut has become the ninth state to pass a law banning private employers from asking criminal history questions on job applications. Effective January 1, 2017, Connecticut employers will not be able to ask prospective employees about prior arrests, criminal charges or convictions on an initial application.
Austin will become the first Texas city to restrict the use of criminal history information by private employers in the hiring process. The ordinance will prohibit both criminal history inquiries and criminal background checks until after a covered employer makes a conditional job offer.
Updated to reflect expanded Philadelphia ban the box criminal history law, effective March 14, 2016.
HR guidance on legal considerations of job application forms.