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 forthcoming law regarding salary history inquiries and pay scale disclosure.
Updated to reflect forthcoming Maine restriction on salary history inquiries.
Updated to include forthcoming amendment to law regarding expungement of criminal records.
Updated to include forthcoming New Mexico 'ban the box' law for private employers.
With a growing US labor shortage and skills gap, Society for Human Resource Management CEO Johnny C. Taylor Jr. is urging employers not to ignore applicants with criminal backgrounds or older workers.
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.
HR guidance on legal considerations of job application forms.