NFIB

Is Your Employment Application Legal?
11/ 06/ 2002

by Charles R. McConnell

It's common to discover, especially in smaller organizations that only occasionally recruit new employees, that the same employment application has been in use for a decade or longer. However, if the application you're using is more than three or four years old, there's a good chance it asks for one or more items of information that can no longer legally be requested. This is likely to be true whether your application is of your own design or a stock application purchased from a business forms supplier.

Some application prohibitions should by now be obvious--just as in an interview we are prohibited from asking for information about an applicant's race, religion, national origin and marital or family status. Concerning age, there is but one question that in most instances can legally be asked--whether the applicant is at least 18 years of age (because of labor laws that prohibit the employment of minors in certain settings). In a very few instances age is considered a bona fide occupational qualification (BFOQ)--understandably affecting such occupations as surgeon, airline pilot, police officer and firefighter--but for the overwhelming majority of applications all questions about age are illegal. These and numerous other prohibitions arose initially from Title VII of the Civil Rights Act of 1964.

Title VII? Nearly forty years ago? By now shouldn't we have a firm grasp of all that's permitted and all that's prohibited? We might believe we should, but Title VII doesn't stand alone; its prohibitions have been supplemented steadily over the years by a growing body of legislation that continues to protect more personal information from examination by prospective employers and others. Anti-discrimination legislation has continued to proliferate, as has legislation intended to protect individual privacy.

Some common examples follow. It is of course permissible to ask an applicant's address, but asking the once-common follow-up question about renting or owning a home is now prohibited because it implies digging for information about a person's economic status. Likewise the once-common practice of asking whether the applicant has ever been subject to garnishment of wages is now similarly forbidden. And the simple and once commonly asked question "Where were you born?" is no longer permitted because it can be construed as soliciting information about national origin.

Not too many years ago it was common to ask an applicant to name the country of which he or she was a citizen. Today, however, this is also construed as asking about national origin. It's permissible to ask whether one is a citizen of the United States or is legally eligible for employment in the U. S., but this is different from directly asking for one's citizenship.

Once upon a time most applications asked for "Next of kin." Years ago that gave way to a request for the name of the "Person to notify in case of emergency." Yet even this latter request is now illegal; it can no longer be asked because it can be construed as fishing for information about marital status. Surely you need this information once a person has been hired, but it's among the elements of personal information that can't be requested until the individual has accepted an offer of employment.

A comprehensive list of what can't be requested via the employment application is far beyond the scope of this brief discussion. However, there's a simple rule that can help keep your pre-employment inquiries--including your application--legal: Forget the emphasis of the past on determining what the person is (younger or older, single or married, affluent or insolvent, etc.) and concentrate on learning what the person knows and can do. Simply remember that personal information not related to one's qualifications and experience is irrelevant and that asking for it on an application is potentially illegal.

If in doubt about the legality of the application you're using, it may be worthwhile to buy an hour of your attorney's time to review it in light of the present requirements of employment law.

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