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 reflect Spokane 'ban the box' law, effective June 14, 2018.
Updated to reflect Washington state and Kansas City "ban the box" laws.
Updated to reflect forthcoming amendments to state 'ban the box' law.
Updated to reflect forthcoming law regarding salary history inquiries.
Connecticut has become the sixth state to enact a salary history inquiry prohibition. Effective January 1, 2019, no Connecticut employer may inquire or direct a third party to inquire about a prospective employee's wage and salary history.
Updated to reflect forthcoming Connecticut salary history inquiry law.
Vermont has become the latest state to enact a salary history question ban as Governor Phil Scott has signed a law prohibiting employers from asking such questions. The law aims to reduce the wage gap between men and women.
Updated to reflect legal developments regarding Philadelphia's salary history inquiry ordinance.
A federal judge has ruled that Philadelphia's salary history question ban violates the First Amendment, but he also upheld a separate provision that prevents employers from basing hiring decisions on an applicant's prior salary.
HR guidance on legal considerations of job application forms.