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 include Westchester County 'ban the box' law, effective March 4, 2019.
Updated to reflect law prohibiting salary history inquiries during the hiring process, effective January 1, 2019.
Updated to reflect salary history inquiry law, effective January 1, 2019.
Updated to reflect salary history inquiry laws in Connecticut and Hawaii, amendments to California's salary history inquiry law, and additional screening restrictions in Oregon, all effective January 1, 2019.
Updated to reflect forthcoming New Orleans 'ban the box' law, effective March 1, 2019.
Updated to reflect amendments to state 'ban the box' law, effective October 13, 2018.
One of the fastest-moving trends in employment law involves the plethora of "ban the box" laws affecting private employers that have sprouted up in many states and municipalities. These laws make it illegal to include criminal history questions on initial job applications.
Updated to reflect forthcoming law protecting employers from negligent hiring claims.
HR guidance on legal considerations of job application forms.