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  • Published: May 15, 2012

Are you thinking of hiring an employee? If so, give careful consideration to the questions asked in your company’s employment applications. There are a number of problem areas that can land your business in hot water if you include them in an employment application or ask them during a job interview. If you plan to develop your own job application and aren’t sure what you can legally ask, consult with an employment law attorney who can advise you about the law in your state.

What Can I Legally Ask?

There are a few basic details that nearly all job applications ask for. These include:

  • Basic contact details (name, address, phone number)
  • Position applied for, hours of availability, requested salary
  • Past experience, supervisor names, and reason for leaving previous positions
  • Educational background (schools attended, years attended, degrees attained)

Illegal Employment Discrimination

The laws enforced by the U.S. Equal Employment Opportunity Commission (EEOC) prohibit discrimination based on race, color, religion, sex, national origin, age (if 40 or older), or disability. Certain questions may not seem discriminatory to you, but can be used as evidence of an employer’s intent to discriminate on an illegal basis. Such questions include:

  • Are you a homeowner or renter? Note that you can ask for the applicant’s address, but not whether they own the home, as this has been considered discrimination based on socioeconomic status.
  • Marital status or family status (i.e., do you have children?)
  • Age (or date of birth). Note that there is one allowed age-related question, because applicants under the age of 18 are restricted from working in certain industries: Are you at least 18 years of age?
  • Country of birth or country of citizenship. Employers cannot discriminate because an applicant is not a citizen of the U.S. Instead, ask whether applicants are legally eligible for employment in the U.S.

Other Potential Pitfalls

  • While many questions concerning employment history are acceptable, there are a few potential pitfalls. Do not ask applicants whether they belong to a labor union. Also, it is illegal to base employment decisions on whether the applicant has participated in complaints, charges, investigations, or lawsuits related to employment discrimination.
  • Employers should not ask about credit rating or credit references, as these may be considered discriminatory.
  • Questions about height, weight, or other physical attributes should only be included if they are directly related to job performance.
  • Asking about other physical attributes, including pre-employment questions about disability or handicaps, is prohibited by the Americans with Disabilities Act
  • It is acceptable to an ask an applicant whether he or she smokes or uses drugs or ask for an applicant’s agreement to submit to drug testing as a condition of employment.
  • Employers should not ask questions concerning arrests, unless the application is for a ‘security sensitive’ job. The EEOC also advises companies not to ask questions about an applicant’s conviction record unless the employer can show that the conviction is related to the position being hired for.
  • Employers should not ask for a photograph of an applicant as part of the application process. If needed for purposes of identification, you can ask for a photo after the applicant has accepted your offer of employment.

If in doubt, ask yourself whether the question is related to the applicant’s ability to do the job. If not, it may be a good idea to omit it from the application. If you are concerned about legality of your employment application, consult an attorney who can compare it to current employment laws.

SG Law Group.

Call SG Law Group now for help with complex situations.
Phone: (786) 788-8756 or (786) 788-8982.

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