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.
In-depth review of the spectrum of Delaware employment law requirements HR must follow with respect to interviewing and selecting job candidates.
A new Washington, DC law bans employers with more than 10 employees from seeking criminal background information about job applicants until after a conditional employment offer has been made.
Washington, DC Mayor Vincent Gray has signed a broad law restricting employer criminal history inquiries during the hiring process. The new law prohibits criminal history questions or background checks until after a conditional job offer has been made. It applies to employers with more than 10 employees.
The new law takes effect March 1, 2015, and will apply to employers with 15 or more employees, as well as employment agencies.
New Jersey has become the sixth state to ban criminal history questions on job applications for most private employers. On August 11, Governor Chris Christie signed the Opportunity to Compete Act, which will apply to business with 15 or more employees.
A new San Francisco "ban the box" law has taken effect that goes beyond California law and affects private employers with 20 or more employees. The ordinance prohibits employers from asking about or seeking the conviction history of job applicants until after their first live interview.
In-depth review of the spectrum of New Jersey employment law requirements HR must follow with respect to Interviewing and Selecting Job Candidates
HR guidance on legal considerations of job application forms.