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 Austin, Texas "ban the box" law affecting most private employers, effective April 4, 2016.
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.
Updated to reflect Seattle's new notice and posting requirement under its Fair Chance Employment Ordinance.
Portland, Oregon has enacted one of the nation's broader "ban the box" laws restricting criminal history questions or background checks until a conditional job offer has been made. Effective July 1, 2016, the new law will apply to employers with six or more employees.
President Obama has ordered all federal government agencies to stop asking prospective employees on job applications if they have a criminal record. Obama's "ban the box" announcement involves the box on job applications that candidates are often asked to check off if they have ever been convicted of a crime.
In-depth review of the spectrum of New York employment law requirements HR must follow with respect to interviewing and selecting job candidates.
In-depth review of the spectrum of Maine employment law requirements HR must follow with respect to preemployment screening and testing.
HR guidance on legal considerations of job application forms.