Recruiting and hiring the best-fit candidates is an essential part of business operations. When the process runs smoothly and effectively, it can result in a promising new hire that makes a positive impact on your business. If handled poorly or afoul of legal compliance, it can lead to discriminatory hiring practices which not only puts your business reputation at risk but could also result in significant legal fees and financial penalties.
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Employers must comply with federal, state, and local anti-discrimination laws. Ensuring your job applications avoid illegal questions and missteps is critical to laying the foundation for compliance from the start. Job application questions should focus solely on job-related issues that don’t cross the legal line. Questions should protect the privacy and employment rights of applicants; therefore, applications should never ask about gender, age, race, religion, national origin, disability, marital or family status, or genetic information.
According to EEOC data from FY 2016 through FY 2021, the total number of job discrimination charge receipts and resolutions has decreased by about 25% at the federal level. Despite the improvement, business costs resulting from these charges totaled more than $439 million dollars in administrative and litigation costs. Additionally, even though overall job discrimination charges were down, there were increases in several charge categories including color-, disability-, genetic information-, and pregnancy-based charges.
In this article, we’ll take a closer look at what your employment applications can and can’t ask to ensure fairness and legal compliance. We’ll discuss the protected classes, ban the box legislation, and salary history worker protections. Find out what you need to know to avoid missteps that can lead to lawsuits and what’s at risk if your business loses a discrimination lawsuit. Plus, what’s ok and what’s not ok to ask on a job application.
Be aware of these legal requirements and protected classes
Every human resources professional should review the EEOC fact sheet, Federal Laws Prohibiting Job Discrimination, Questions and Answers. It’s an important resource that provides a general overview of federal equal employment opportunity laws. Use this resource as a guide to ensure your job application uses airtight language and focus solely on capturing relevant facts related to the job including skills, education, and employment history.
Here are the classes protected against discrimination by federal law:
Race, color, religion, sex, and national origin. Title VII of the Civil Rights Act of 1964 prohibits discrimination of individuals based on race, color, religion, sex, and national origin.
Age. The Age Discrimination in Employment Act of 1967 protects individuals aged 40 and older from employment discrimination.
Disabilities. Titles I & V of the Americans with Disabilities Act of 1990 protects qualified individuals with disabilities from employment discrimination.
Genetic information. Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) makes it illegal to discriminate against an individual on the basis of genetic information.
Pay attention to state and local anti-discrimination laws
There is a growing movement to improve fairness in hiring practices—and there are several laws that are specific to particular states and localities. One of the newer legal requirements employers should be aware of is “ban the box” which addresses the prohibition of pre-employment or application inquiries about criminal history. As of October 2021, 37 states and 150 localities have adopted “ban the box” legislation to remove conviction and arrest history questions from job applications to ensure employers consider candidate qualifications first—without the stigma. Depending on the location, the law may apply only to public employers or to both public and private. It’s important to note that employers can still conduct background checks, but they must be carried out later in the hiring process. For example, a recent Iowa court ruling indicates that criminal history inquiries can only be made after a conditional job offer is made.
Employers should also be aware of the 21 states and 21 localities that have passed legislation banning pay history questions from job applications. Aimed at ending the cycle of pay discrimination, some state and local laws go beyond banning pay history questions to prohibit an employer from relying on pay history as a basis for compensation decisions. If this law affects your business, any questions regarding salary history should be removed from your job applications immediately.
What you need to know about the impact of a discrimination lawsuit
The EEOC points out the goal of anti-discrimination laws is to “put the victim of discrimination in the same positions (or nearly the same) that he or she would have been if the discrimination had never occurred.” Therefore, the types of relief will depend on the specific action and its effect on the victim. For example, a remedy may include a combination of relief such as back pay, hiring, or front pay; compensatory and punitive damages payments; and a recovery of attorney fees and court costs.
The EEOC may also require the employer to post notices to all employees that address the violations of a specific discrimination charge, advise them of their rights under EEOC laws, and their right to be free from retaliation. Additionally, the employer may be required to take corrective or preventive
action to fix the problem and minimize its chance of recurrence.
Questions that should never appear on a job application
The bottom line is that employers must be knowledgeable about the legality of questions that appear on job applications. Every question should be screened to ensure that the employer can demonstrate a job-related necessity and it is essential to determine an applicant’s qualifications, skills, and competence for the job in question. With that in mind, SHRM has provided some excellent guidelines to help employers assess acceptable versus unacceptable questions for job applicants. Here is a sample:
OK (If age is a legal requirement, i.e., 18 and older): “If hired, can you furnish proof of age?”
NOT OK: “What is your date of birth?”
OK: “Are you legally eligible for employment in the US?”
NOT OK: “What is your national origin? Where are your parents from?”
OK: “Can you perform the duties of the job you are applying for?”
NOT OK: “Do you have any disabilities?,” “Have you ever been injured on the job?”
OK: “What are your salary expectations for this position?” *
NOT OK: “What is your current salary?”
Credit Record (Irrelevant, could be considered racial discrimination)
NOT OK: “Have you ever declared bankruptcy?” “Have your wages ever been garnished?” “Do you own your own home?”
Stay on top of new laws and current hiring trends
It is essential to ensure your business is collecting all the pertinent pre-employment information needed to make the best hire—but it is equally essential to ensure you’re maintaining compliance with federal, state, and local employment laws so you don’t expose your business to legal risk. Asure can help. Our award-winning HR Online Library is updated regularly to keep you up to date with the latest laws, regulations, and guidance changes. Asure also provides continuing education, self-assessments, interactive tools, and templates to help you and your business stay on track.
In addition, here is a recent video on How to Avoid Discrimination on Job Applications.