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: A few states and a host of big cities have passed 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 may seek criminal background information later in the process.
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.
David B. Weisenfeld, J.D., 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.
XpertHR's Minnesota content has been updated to reflect a new law that will soon prohibit most private employers from asking prospective employees about their criminal histories on job applications.
Minnesota will soon become the third state with a Ban the Box law that applies to both private and public employers, joining Massachusetts and Hawaii. Ban the Box refers to laws prohibiting the box on job applications that prospective employees are asked to check off if they ever have been convicted of a crime.
Maryland has joined a growing national trend in becoming the ninth state to enact a Ban the Box law. Ban the Box refers to the box on applications that prospective employees are asked to check off if they ever have been convicted of a crime.
A new 3rd Circuit ruling finds the Americans with Disabilities Act (ADA) does not protect an employee who concealed his prior drug addiction on a health information form during the hiring process.
Richmond, Virginia has joined the growing list of cities nationwide to adopt "Ban the Box" laws to prohibit certain employers from asking applicants on job applications to check off a box if they have prior felony convictions.
In-depth review of the spectrum of Virginia employment law requirements HR must follow with respect to interviewing and selecting job candidates.
In-depth review of the spectrum of Federal employment law requirements HR must follow with respect to New Hire Paperwork.
New Jersey legislators have proposed a Ban the Box law to prevent employers from asking about their criminal history on job applications. If approved, the measure would apply to both private and public employers in the Garden State. Ban the Box refers to the box often included on job applications that applicants are asked to check off if they ever have been convicted of a crime.
HR guidance on legal considerations of job application forms.
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