Outdated Employment Applications Are Walking Among Us – RUN (to your lawyer)!

Contributed by Caryl Flannery

Zombie movies and TV shows can be entertaining.  “Undead” application forms, not so much.  An “undead” application is an outdated form that should have been put to rest long ago but somehow lives on, scaring job applicants and threatening to devour businesses over and over again.  Although we all think we’ve become pretty Equal Employment Opportunity (EEOC) savvy, the job application form often is overlooked in the compliance and updating process.  Many employers are relying on the same application form that they’ve used for years or a generic form downloaded from a one-size-fits-none internet site.  Sound familiar?  Read on … if you dare.

The many recent changes in labor and employment law and enforcement directly affect what you can, should, and should not ask in your application.  Information that was once standard fare may now be unlawful or likely to lead to information which could be used in a discriminatory fashion.  Disappointed applicants will point to those questions as evidence of discrimination in consideration of their application.  A government agency may expand that into an examination of your overall hiring process.  Current employees with complaints, charges, or lawsuits can (and will) point to the application to establish that your business is, at best, insensitive to discrimination concerns and, at worse, hostile to EEOC laws and inclusion issues. 

Following are a few examples of what should / should not be on your initial application form.  These are general guidelines and do not cover every category of inquiry.  Consult your employment attorney to be sure that all applicable federal, state, county, and local laws and regulations are reflected in your application form. Make sure that your application is available and accessible to people with disabilities, people without internet access, and, in some cases, non- or limited-English speakers.  (Editor’s note: As of this writing, there are no laws protecting the undead in the workplace)

Race, gender, age, religion, ethnic background, appearance, citizenship:  These have been off-limits for some time.  Information needed for affirmative action programs or other tracking requirement should be gathered on a separate form. Many jurisdictions now include sexual orientation as a protected characteristic. Ask about legal ability to work rather than citizenship or immigration status.

Health, injuries, and disability: Inquire only about the ability to perform the essential functions of the position with or without reasonable accommodation.  Don’t ask about specific conditions, diagnoses, genetics, or treatment information.  Histories of illnesses, injuries, or workers’ comp claims are also unacceptable.

Criminal history:  The EEOC takes the position that criminal history information should not be an issue unless the position is safety or security sensitive. Many states, including Illinois, have passed laws limiting inquiries in this area. 

Drugs and tobacco:  You can ask an applicant to consent to following your workplace drug and alcohol policy but don’t ask about particular habits.  Some states (such as Missouri) have laws that protect an employee’s right to use tobacco outside the workplace.  Others (such as Illinois) protect those who are registered medical marijuana users. 

Social Security number: Get social security numbers from employees, not applicants.  They serve no purpose in the application process and you become responsible for protecting that information from theft or misuse.