Build a legal employment application

The most vital question doesn't even appear on your application: 'Is it legal?'

Nearly every employer uses an employment application. Well-designed applications can provide a wealth of information about potential employees - as well as an initial screening process that reserves valuable interviewing time for clearly dominant applicants. However, employment applications can also land you in court if you aren't careful.

With today's tight labor market, many employers are investing more and more time into the recruiting process - which makes it vital that this process be as refined and legally defensible as possible. Here are some tips that can help ensure your applications do not violate federal or state anti-discrimination laws.

Instructions to the Applicant

Employment applications are usually composed of three basic sections. One generally includes instructions on how to complete the application. You should consider including three legally significant instructions in this section.

Number 1. First, you may want to include a statement that any applicant who provides unrequested information will be automatically rejected. This is useful because some applicants may include extraneous information about themselves on an application so they can later claim they were rejected for unlawful reasons.

For example, it is a common union "salting" technique for applicants to state on an application that they are union organizers - even though the application does not request such information. If they are not hired, the applicants sue the employer and claim they were unlawfully rejected because of their union activity.

Number 2. Second, you may want to include instructions on how disabled applicants can request any accommodation needed to enable them to complete the application. This can help you comply with the Americans With Disabilities Act (ADA).

The ADA requires reasonable accommodation of the disabled during employment, as well as during each stage of the selection process. These instructions on the application let disabled applicants know they have the right to request accommodation, but also the burden of doing so.

Number 3. Although not legally required, you may want to include an equal opportunity statement in the instructional section. Doing so notifies applicants that your organization adheres to the principles of equal employment opportunity. By signing the form, applicants show that they acknowledge the policy.

Such a statement could read, "This company is an equal opportunity employer and will not discriminate, or tolerate discrimination, against any employee or applicant in any manner prohibited by law."

Information from the Applicant

Most employment applications also include a section that addresses questions to the applicant. These questions are designed to elicit information that will help the employer decide whether the applicant meets the minimum qualifications of the job.

In drafting this section, employers must be careful that the questions they ask are not unlawful. According to the Equal Employment Opportunity Commission (EEOC), employment applications are "tests" in the same sense that any tool used to determine whether an applicant will go forward in the selection process is a "test." And, according to federal Uniform Guidelines on Employee Selection, employment tests are not allowed to have an adverse impact on applicants who are protected by federal employment discrimination laws - unless that impact is validated.

The easiest way to validate a question is to show that it is related to the applicant's potential to perform the job. So, employers should ask only relevant, job-related questions on applications.

Employers should avoid asking questions about race, religion, gender, age, national origin, citizenship, arrest records, financial status, military record, disability or union affiliation. While most obviously unlawful questions are easy to spot, some are not. Here are some of the trickier areas that HR professionals should be on guard against.

National origin. Title VII prohibits discrimination on the basis of national origin. Not only are employers prohibited from asking applicants where they were born, they are also prohibited from asking where an applicant's parents were born or an applicant's native language.

Instead, employers should ask applicants if they are eligible to work in the United States. If it is essential for persons holding a particular job to speak or write in English, applicants may be asked if they are able to do so.

Gender. Under Title VII, employers are prohibited from discriminating against females because of their gender. As a result, questions that relate to gender are not permissible. Here are some questions that the courts and the EEOC have determined to be unlawful:

* Are you pregnant?

* Do you have any children?

* Are you planning to have children? Are you married?

* What type of child care arrangements do you have?

Rather than ask these impermissible questions, employers should limit their inquiries to whether the applicant can perform the necessary functions of the job. For example, employers could state that a job requires a lot of overtime and travel and ask applicants if they will be available to fulfill those requirements.

Financial status. Under Title VII, questions regarding the financial status of applicants are considered unlawful - unless they are job-related. Thus, it may be unlawful to ask applicants questions that may indicate their financial status, such as whether they own a car, unless that is necessary to perform the job. For example, individuals applying for a job delivering pizzas could be asked if they have access to a car if the company requires delivery persons to supply their own transportation.

Additionally, employers should not ask applicants if they have ever filed for bankruptcy; the federal Bankruptcy Code prohibits employment discrimination based on the fact that a person has been bankrupt, a debtor in bankruptcy or associated with someone who was bankrupt or a debtor in bankruptcy.

Arrest records. According to the EEOC, asking if an applicant has ever been arrested violates Title VII because such inquiries tend to adversely affect black and Hispanic applicants. On the other hand, employers may ask about job-related criminal convictions. According to the EEOC's Revised Policy statement regarding criminal convictions, employers can reject an applicant due to a criminal conviction if they take into account the following factors:

* The nature and gravity of the offense.

* The length of time elapsed since the conviction or completion of the jail sentence, if any.

* How closely the conviction relates to the job under consideration.

The more serious the conduct on which the conviction was based, the more recently it occurred and the more job-related the conviction, the more likely it will be lawful to reject an applicant based upon the conviction.

Disability. As most employers know, the ADA prohibits employers from asking whether applicants have a disability. However, the ADA also prohibits other inquiries that are considered reasonably likely to elicit information about applicants' disabilities. Here are examples of questions employers must avoid:

* Have you ever filed a workers' compensation claim?

* How many days were you absent from your last job due to illness?

* Do you have any health problems that could impede your ability to do this job?

* Have you ever been a patient in a hospital?

* Can you perform the essential functions of this job?

Employers should replace any of the above unlawful inquiries on their employment applications with the following questions, which the EEOC has deemed lawful:

* Can you perform the essential functions of this job, either with or without reasonable accommodation?

* Can you meet the attendance requirements of this job?

For further guidance on permissible and impermissible questions under the ADA, consult the EEOC's "Enforcement Guidance: Pre-Employment Disability-Related Questions and Medical Examinations."

Age. The Age Discrimination in Employment Act prohibits discrimination against persons who are 40 or older. As a result, employers should omit questions that directly - or indirectly - address age. For example, avoid asking for the dates when applicants graduated from high school.

Sexual Preference. No federal statutes prohibit inquiries into an applicant's sexual preference, but some state and local laws do. Therefore, you should check the state and local laws of every jurisdiction in which the application will be used to determine if such questions are permissible.

Height and weight. Inquiries into height and weight may reveal applicants' legally protected medical conditions. For example, employers who know an applicant's height and weight can determine if that person is morbidly obese - a medical condition protected by the ADA. Therefore, questions about height and weight should be asked only if there is a job-related reason for doing so.

Smoking. Bans on smoking in the workplace are becoming popular, so employers may be tempted to ask applicants if they smoke. However, many state laws expressly prohibit employers from discriminating against applicants who smoke. Employers should consult the laws of each state in which the application will be used to determine if such an inquiry is lawful.

One way around this problem is to state on the application that your organization provides a smoke-free work environment for employees. Such a statement may discourage smokers from submitting the application.

Clubs and organizations. The clubs or organizations to which applicants belong may indirectly reveal their race, religion or national origin. Employers should limit discussion to those groups that are job related - such as professional organizations.

Military record. Questions regarding the type of discharge that an applicant received from the military violate Title VII, unless they are job-related because some minorities may receive disproportionate numbers of "undesirable" or "dishonorable" discharges compared with whites.

On the other hand, it is legal for employment applications to include questions that ask whether an applicant served in the military, as well as dates of service and training and experience received during military duty.

Certifications, Disclaimers and Notices

A final section contained on most employment applications generally consists of certifications, disclaimers and other notices to applicants. In this section, applicants are often required to "certify" or otherwise warrant the accuracy of the information provided on the application.

This certification should also warn applicants that misstatements or omissions on the application could result in a refusal to hire, or in discharge if they are discovered after hiring.

Such a statement could read, "By signing this application, I declare that the information provided by me is complete and true to the best of my knowledge. I understand that any misrepresentation or omission on this application may preclude an offer of employment, or may result in a withdrawal of an employment offer, or may result in my discharge from employment if I am already employed at the time the misrepresentation or omission is discovered."

Such a statement will provide employers with lawful grounds to refuse to hire an applicant - or to discharge an employee - if information on the application has been falsified, or if material information has been omitted.

This section may also indicate how long the application remains on file. To reduce administrative work, applications should remain on file no longer than six months.

Keep in mind that keeping applications "on file" merely refers to how long you will continue to consider the application for positions that open. It does not refer to how long the applications must be retained. Under the recordkeeping requirements of federal antidiscrimination statutes, employers must retain employment applications for at least one year.

Finally, in states that recognize the employee-at-will doctrine, employers should consider including an employment-at-will disclaimer that notifies applicants that neither the application, nor any subsequent employment resulting from it, create an employment contract for any specific period of time.

Such a disclaimer could read: "I agree that, just as I have, if hired, the right to terminate my employment at any time, with or without cause and with or without notice, the company may terminate my employment at any time, with or without cause or notice. I understand that no manager or representative of the company, other than its president or his designee, has any authority to enter into any agreement for employment for any specified period of time or make any agreement contrary to the foregoing either now, in the past or in the future. I further understand that such an agreement must be in writing and signed by the president for it to be binding on either myself or the company. I further understand that this statement supersedes any prior oral or written understanding and bars any future oral understanding to the contrary."

Conclusion

Through careful drafting and attention to relevant state and federal laws, employers can create employment applications that are lawful and that provide them with the job-related information they need to successfully evaluate the qualifications of applicants for employment.

Timothy S. Bland, Esq., PHR, is a management attorney with Ford & Harrison, LLP, in its Memphis office. He is also the Legislative Chair of the SHRM-Memphis Chapter. Sue S. Stalcup, SPHR, is a management consultant with Ford & Harrison's Memphis office and is a member of the SHRM-Memphis Chapter.

COPYRIGHT 1999 Society for Human Resource Management
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