Employers should be aware of potential legal pitfalls in their employment application forms. A good rule of thumb is to avoid asking for information that cannot legally be considered in making a hiring decision. The following are examples of information that should generally not be requested:
- Medical or disability-related questions. These can potentially violate the Americans with Disabilities Act.
- School graduation dates. Asking for this information can allow the employer to deduce the age of the applicant, which can lead to a potential violation of the Age Discrimination in Employment Act.
- Arrests and convictions, unless they are job related to the position in question, and you include a disclaimer. The EEOC has issued guidance indicating that the use of criminal history information can have a disparate impact on minority applicants.
- A photograph. EEOC guidance states that this can give rise to race discrimination.
- Marital or familial status. Asking for this information can give rise to a sex discrimination claim. Familial status is also a protected category in some states.
- Citizenship. Discrimination against applicants on the basis of citizenship is prohibited. The Form I-9 is the appropriate way to inquire about citizenship after an applicant has been hired.
