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 big 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.
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
Three sections of the Employment Law Manual have been updated with information about a new ordinance forbidding an employer in San Francisco from including criminal history inquiries on job applications.
San Francisco has become the latest city to enact a Ban the Box law that applies to private employers. On February 17, Mayor Edwin Lee signed the ordinance which covers employers in the city with 20 or more employees.
In-depth review of the spectrum of North Dakota employment law requirements HR must follow with respect to new hire paperwork.
XpertHR's Ban the Box Chart and Employment Law Manual have been updated to reflect the addition of two cities, New Orleans and Akron, Ohio, that have removed criminal history inquiries from initial city job applications. Ban the Box refers to the "box" on job application forms asking prospective employees if they have ever been convicted of a crime.
As of November 1, 2013, all City of Seattle employers are prohibited from asking criminal history questions on initial job applications under a new Ban the Box ordinance. This mirrors the EEOC's view that employers should avoid such inquiries on employment applications. There are 10 states that have passed varying Ban the Box laws.
A new California law that will soon ban state and local government employers from asking criminal history questions on job applications has led to several XpertHR sections being updated.
A new California law will prohibit all state and local government employers in the state from asking for criminal record information on initial job applications.
The introduction of federal "Ban the Box" legislation follows that of a host of big cities and some states which already have enacted laws prohibiting employers from asking applicants if they have been convicted of a felony on initial application forms.
The Office of Federal Contract Compliance Programs (OFCCP) has issued a pair of final rules that will place added affirmative action requirements on federal contractors and subcontractors regarding individuals with disabilities and protected veterans. This podcast features longtime management-side employment attorney Peter Saucier discussing compliance challenges facing employers.
HR guidance on legal considerations of job application forms.