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
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.
In-depth review of the spectrum of New York employment law requirements HR must follow with respect to interviewing and selecting job candidates.
Ohio and Oregon have each taken steps to prohibit criminal history questions on initial job applications. Ohio has adopted a state policy to remove criminal history inquiries from state job applications. Meanwhile, Oregon has enacted a law that also will ban criminal history questions from job applications, and will apply to private and public employers subject to limited exceptions.
Oregon could soon become the 18th state with a "ban the box" law if Governor Kate Brown signs the legislation as expected. The bill would prohibit most employers from asking criminal history questions on job applications. New York City also recently passed a "ban the box" law affecting private employers.
In-depth review of the spectrum of Connecticut employment law requirements HR must follow in respect to interviewing and selecting job candidates.
Effective June 1, Ohio will remove criminal history questions from state job applications that prospective employees are asked to check off if they have ever been convicted of a crime. In doing so, Ohio becomes the 17th state with at least some form of a "ban the box" policy.
Vermont has become the 16th state to ban at least some employers from asking criminal history questions on job applications after Governor Peter Shumlin signed an executive order on April 21.
Georgia and Virginia have become the first two southern states to enact "ban the box" laws to remove criminal history questions from state job applications. Several XpertHR sections have been updated to reflect these developments.
HR guidance on legal considerations of job application forms.