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.
- Garnishment: Questions 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.