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
Illinois will become the fifth state to prohibit most private employers from asking criminal history questions on job applications. The Job Opportunities for Qualified Applicants Act will take effect January 1, 2015 and applies to employers with 15 or more employees.
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.
One of the fastest-moving trends in employment law involves the plethora of "ban the box" laws that have sprouted up in a dozen states and more than 60 municipalities. These laws make it illegal to include criminal history questions on initial job applications.
Effective July 1, state and local government employers in California may no longer ask for criminal record information on job applications. In all, 12 states now have "ban the box" laws, referring to the box on job application forms where prospective employees are often asked whether they have ever been convicted of a crime.
In-depth review of the spectrum of California employment law requirements HR must follow with respect to interviewing and selecting job candidates.
In-depth review of the spectrum of New York employment law requirements HR must follow with respect to interviewing and selecting job candidates.
Delaware and Baltimore, MD, have enacted laws restricting preemployment criminal history inquiries. Several sections of the Employment Law Manual have been updated to reflect these changes.
HR guidance on legal considerations of job application forms.