What questions are prohibited
from being asked on an employment application, and why?
Age/date of birth: Generally,
age is considered not to be relevant in most hiring decisions, and therefore,
date-of-birth questions are improper. Age is a sensitive pre-employment
question, because the Age Discrimination in Employment Act protects employees
40 years old and above from discrimination based upon age. It is permissible
to ask an applicant to state his or her age if it is less than 18. If you
need the date of birth for internal reasons, this information can be obtained
after the person is hired.
Race, religion, national origin:
Generally, questions should not be asked about these matters, either on
employment applications or during job interviews. The requirements that
an applicant furnish a picture has been held to help support a claim for
race discrimination when it was demonstrated that an employer never hired
a minority applicant, the theory being the picture was required so that
an employer would remember which applicants were members of minorities.
A sexual harassment plaintiff might similarly argue that the employer pre-screened
applicants for physical attractiveness.
Physical traits, disabilities:
Height and weight requirements have been found to violate the law in situations
where such requirements have eliminated disproportionate numbers of female,
Asian-American, and Spanish-surnamed applicants when in such cases, the
employer could not show that the physical standards were directly-related
to job performance. The Americans with Disabilities Act prohibits
general inquiries about disabilities, health problems, and medical conditions.
Education: If a job for which
an application is being made does not require a particular level of education,
it is improper to ask questions about an applicant's educational background.
Applicants can be asked about educational background, schools attended,
degrees earned, and vocational training when the performance of a job requires
a particular level of education.
Arrest, conviction records: The
EEOC takes the position that questions concerning arrests are improper
unless the applicant is being considered for a "security sensitive" job
and the employer does an investigation to determine, in effect, whether
the applicant was likely to have committed the crime for which he or she
was arrested. The EEOC also says that questions about an applicant's conviction
record are improper unless the employer can show that the conviction is
in some way related to the position being applied for.
concerning whether an applicant has been the subject of garnishment proceedings
should be eliminated from employment applications. Using the garnishment
history of an applicant in determining whether he or she will be hired
is probably discriminatory, because more minority members have their wages
garnished than do with whites.
Citizenship: The anti-discrimination
provision of the Immigration Reform and Control Act provides that an employer
cannot discriminate because an applicant is not a U.S. citizen. Therefore,
in order to avoid charges of discrimination under this Act, citizenship
questions should probably be deleted from employment applications.
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