Tag Archives: Equal Employment Opportunity Commission

What Will the Biden Administration Bring for Employers?

Contributed by Beverly Alfon, January 12, 2021

They say that the only constant in life is change.  Here is a quick overview of the shift that we expect to see in the realm of labor and employment after President-elect Joe Biden takes office.  

National Labor Relations Board (NLRB)

The NLRB is expected to have a Democratic majority as early as August 2021.  The five-member Board currently has three Republican members, one Democrat, and one vacancy.  The expectation is that the Biden administration will move quickly to fill the vacancy.  In addition, the term of William Emmanuel, a Trump appointee, will expire in August 2021 – opening the door to a third Democrat.

The current NLRB General Counsel, Peter Robb – who has pushed a strong pro-employer stance in his role as prosecutor of unfair labor practice charges – will see his term expire in November 2021.  There is some speculation that due to pressures from organized labor, President-elect Biden will find a way to terminate Robb’s terms prior to that.

As with prior administration changes, the expectation is that a Democratic Board majority and new General Counsel will lead the Board’s policy and enforcement priorities will go back to a pro-labor agenda. With this expected change will likely come easier roads to organizing, broadening of joint-employer liability, a return to post-contract continuation of union dues, and stricter restrictions on an employer’s ability to exercise discretion even when contract language provides for it. Not all changes will be immediate, of course, as case precedents established by President Trump’s appointees are not subject to reversal until cases presenting the relevant issues come before the Board.

We will be keeping an eye out for components of (or the entirety of) the Protecting the Right to Organize Act (PRO Act), which passed in the House in early 2020 with a vote of 224 to 194, largely along party lines.  The legislation went nowhere in the Senate in 2020, but it is 2021. The results of the Georgia runoff elections have changed the political landscape.  Among other things, the PRO Act was aimed at giving workers more equal footing during disputes at work, prohibiting employers from permanently replacing economic strikers, creating a private cause of action for unfair labor practices, authorizing the NLRB to add penalties for employers who retaliate against workers who organize, and allowing for secondary boycotts.  President-elect Biden is a strong supporter of the PRO Act provisions, making clear that significant, pro-labor changes will be made through and within the NLRB.

Equal Employment Opportunity Commission (EEOC)

The EEOC enforces federal laws that prohibit employment discrimination, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964.  The EEOC will have a Republican majority until July 2022.  The EEOC’s current Strategic Enforcement Plan, which establishes the EEOC’s enforcement priorities, will also be in place until 2022.  Therefore, changes to the agency initiatives will be even less immediate than at the NLRB, but the expectation is that the EEOC will return to its aggressive enforcement of these federal employment laws against employers, likely focused on workplace harassment, equal pay, and LGBT discrimination/harassment claims (especially in light of the June 2020 U.S. Supreme Court decision in Bostock, which holds that an employer who fires an individual merely for being gay or transgender violates Title VII).

U.S. Department of Labor

President-Elect Joe Biden has formally nominated Boston Mayor, Marty Walsh for Secretary of Labor.  In response to the announcement of his nomination, Walsh tweeted, “Working people, labor unions, and those fighting every day for their shot at the middle class are the backbone of our economy and of this country. As Secretary of Labor, I’ll work just as hard for you as you do for your families and livelihoods.”  Some media outlets are reporting that Walsh, like Biden, is more moderate than meets the eye, willing to reach across the aisle in order to make things happen.  However, there is no question that unions expect robust support from Walsh due to his strong ties to organized labor, including a role as head of the Boston Building and Construction Trades Council.   If confirmed by the Senate (which is very likely in light of the results of the Georgia runoff elections), Walsh would be the first union member to serve in this role in almost 50 years.

With Walsh at the helm, we expect that federal minimum wage and paid sick leave benefits will be top priorities.  Walsh was a strong supporter of the state-wide Massachusetts law requiring paid family and medical leave benefits, and the forthcoming state minimum wage requirement of $15 an hour.  We also anticipate that the DOL will revisit overtime standards, rules dealing with pay entitlement for off-the-clock work (especially in this time of widespread remote work), and the joint employer standard. It is also very likely that the DOL’s recently issued independent contractor classification regulations will be rescinded or superseded by new regulations that would be more worker-friendly.  Enforcement will likely be aggressive, especially in industries like food manufacturing, fast food, and construction, which are priorities for organized labor, especially in terms of wages and workplace safety (especially, COVID-19-related complaints). Indeed, there is some expectation that this DOL will be even more aggressive and progressive than that of the Obama administration.

Bottom line:  Employers must be focused on compliance.  While we cannot specifically predict what will come over the next few months and years, it is imperative for employers to anticipate the pendulum swing and assume stricter enforcement of rules and regulations against employers, sooner rather than later. 

Supreme Court Rules Title VII’s Charge Filing Requirement Is Not Jurisdictional…but is Still a Required Rule

Contributed by Carlos Arévalo, August 8, 2019

Supreme Court building

This past February we reported that the Supreme Court agreed to review the Fifth Circuit’s ruling in Fort Bend County v. Davis on the viability of claims brought in federal courts where the claimant had not first filed her claim with the Equal Employment Opportunity Commission (EEOC). On June 3, 2019, the Supreme Court issued its decision holding that Title VII’s charge-filing requirement is a non-jurisdictional claim-processing rule that may be forfeited if not timely asserted. 

Under Title VII of the Civil Rights Act of 1964, an employee is required to first bring his claims of employment discrimination with the EEOC prior to filing suit in federal court. Known as the “exhaustion requirement,” courts have noted that its purpose is to give the EEOC the opportunity to investigate and resolve credible claims of discrimination, and also to provide employers fair notice and a chance to remedy complaints prior to litigation.

In Fort Bend County, the employee initially filed a charge with the EEOC asserting Title VII sexual harassment and retaliation claims. Later, she attempted to add a charge for religious discrimination, but failed to update the formal charge. She filed suit. After years of litigation, only the religious discrimination claim remained. The employer then argued for the first time that the religious discrimination claim should be dismissed because the employee failed to properly file a charge with the EEOC before suing.

Prior to this decision, appellate courts were split on the meaning of the exhaustion requirement. On the one hand, the majority of circuits maintained that the exhaustion requirement was merely a prerequisite to bringing suit, and therefore subject to defenses of waiver and estoppel. On the other, three circuits had ruled that the exhaustion requirement implicated subject matter jurisdiction and could not be waived.

Justice Ruth Bader Ginsburg, in a unanimous decision, settled the question on the side of the majority of circuits and wrote that the charge-filing requirements “do not speak” to a court’s authority or refer in any way to the district court’s jurisdiction, but rather “speak to a party’s procedural obligation…[requiring] complainants to submit information to the EEOC and to wait a specified period before commencing a civil action.” 

What does this mean for employers? It means that while there is still a rule that employees must file a charge and exhaust their administrative remedies before filing a lawsuit, failing to do so will not automatically deprive the court of jurisdiction over the employee’s claim. However, it also means that employees are still required to comply with the rule and may not simply file a lawsuit without first filing a charge of discrimination and exhausting their administrative remedies. More importantly though for employers, it reminds us that if you do not assert failure to exhaust as a defense, it can be inadvertently waived or forfeited by “waiting too long” to raise it. To surely minimize this impact, employers should review the administrative history of pending lawsuits to ensure that an otherwise viable “exhaustion requirement” defense is not inadvertently waived or forfeited by “waiting too long” to raise it.

Update on the EEO-1 Pay Data Reporting

Contributed by Allison P. Sues, April 8, 2019

Flat 3d isometric business analytics, finance analysis

On April 3, 2019, the EEOC informed a federal district court that the earliest it could complete its collection of pay data from covered employers as part of their EEO-1 data reporting obligations is September 30, 2019. The court still needs to rule on the EEOC’s proposed plan and, therefore, employers have not received a final deadline by which to file the required pay data. However, this filing brings employers one step closer to an answer for an issue that has caused them justified concern given the significant time and resources that will be needed to collect this pay data. 

Here is a quick refresher on the course of events that led up to the EEOC’s April 3 filing:

  • Since 1966, the EEOC has required covered employers to submit an Employer Information Report EEO-1 form, providing data on the number of individuals employed by job category, sex, race, and ethnicity (known as Component 1 of the EEO-1 report). More information on Component 1 reporting can be found in one of our previous blog posts.
  • In 2010, the EEOC commissioned a study to identify ways to improve prohibiting pay discrimination and found that there was potential value in collecting pay data in connection with the EEO-1 reports.
  • In order to collect this type of data, the EEOC needed approval from the Office of Management and Budget (OMB). In September 2016, the OMB approved the EEOC’s proposed collection of pay data (known as Component 2 of EEO-1 reports). Under this approval, employers would first be required to submit the required pay data by March 2018.
  • In August 2017, the OMB stayed the implementation of Component 2 of the EEO-1 reports, with instructions that employers still comply with Component 1 reporting requirements. 
  • In November 2017, two non-profit organizations that advocate for equal pay for women and Latino workers filed a lawsuit, National Women’s Law Center et al. v. OMB et al., challenging the stay in the U.S. District Court for the District of Columbia. 
  • In March 2019, the court vacated OMB’s stay of the Component 2 reporting requirement and provided that the OMB’s prior approval of the EEOC’s collection of pay data “shall be in effect.”
  • The court then asked the EEOC to propose how it would undertake and close the collection of pay data now that Component 2 requirements are back in effect. 

That brings us to the EEOC’s recent April 3 filing. The EEOC informed the court that its current data processes are not capable of collecting employers’ Component 2 data.  Instead, the EEOC will need to rely on an outside data and analytics contractor. The EEOC warned that an expedited collection of this pay data may produce poor quality data for the 2018 calendar year, and that quality concerns will be compounded if employers are also required to provide pay data for calendar year 2017. The court still needs to decide several unanswered questions, such as when employers need to submit their pay data, when the EEOC needs to complete its data collection, and whether employers need to submit pay data for 2017. Check back on this blog for updates.

In the meantime, all employers should ensure that they meet the May 31, 2019 deadline for providing Component 1 of the EEO-1 reports and begin the significant effort of preparing the pay data that will ultimately need to be submitted.   

Seventh Circuit Holds that Multiple-Month Extended Leaves Are Not Reasonable Accommodations Under the ADA

Contributed by Allison P. Sues, September 27, 2017

Because not all recoveries from medical conditions come in neat twelve-week packages, employers commonly need to address employees’ requests for additional leave after they have exhausted all leave afforded under the Family Medical Leave Act (“FMLA”) or company policy.

Clock and StethoscopeThe U.S. Equal Employment Opportunity Commission has long taken the position that terminating an employee who has exhausted FMLA leave, but is still not able to return to work, may violate the Americans with Disabilities Act (“ADA”). For instance, the EEOC guidance, issued on May 9, 2016, opined that providing additional leave may be necessary as a reasonable accommodation.

The Seventh Circuit Court of Appeals recently issued a decision running contrary to this EEOC guidance and the prevailing precedent in other circuits, holding in Severson v. Heartland Woodcraft, Inc., that an employee is not entitled to extended leave as a reasonable accommodation under the ADA.

In this case, employee Severson took a twelve-week medical leave from work under the FMLA to deal with serious back pain (the statutory maximum). Shortly before this leave expired, Severson notified his employer that he was scheduled to undergo back surgery, and requested an additional two to three months of leave to recover from surgery. The company denied Severson’s request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work.  Instead, Severson sued, alleging a failure to reasonably accommodate his disability—namely, a three-month leave of absence after his FMLA leave expired.

The Seventh Circuit affirmed the district court and clarified that a medical leave spanning multiple months is beyond the scope of a reasonable accommodation. Finding that the employer did not violate the ADA by refusing to provide the additional leave, the Seventh Circuit explicitly stated that an employee, who cannot not work or perform their job’s essential functions, is not a “qualified individual” under the ADA.  Further highlighting its position, the Court distinguished between the FMLA, which it held was intended to provide long-term medical leave for those who cannot work, while the ADA is meant to require accommodation only for those “that can do the job.”

Before employers in Illinois, Wisconsin and Indiana reinstate strict Maximum Leave Policies and No-Fault Termination policies, whereby employees are automatically terminated if they cannot return to work when FMLA or other awarded leave is exhausted, several limitations to Severson should be noted.

Severson’s holding is limited to “medical leave[s] spanning multiple months.” The Court acknowledged that finite extensions of leave for shorter durations – described as “a couple of days or even a couple of weeks”, but less than multiple months – may still be deemed a reasonable accommodation.

The Court further acknowledged that intermittent leaves of short duration may constitute reasonable accommodations in the same way a part-time or modified work schedule may be a reasonable accommodation for employees dealing with medical flare-ups. Moreover, employers should be cautious about maintaining 100% Healed Policies, whereby an employer requires employees to have no medical restrictions whatsoever when their leave ends.

At any time employees have exhausted their leave, but are not fully cleared to return to work, the employer should engage in the ADA’s interactive process and consider the following before deciding to terminate employment:

  • Whether the employee’s current medical restrictions affect the employee’s ability to perform the essential functions of the position;
  • If the restrictions do impact the employee’s ability to perform the essential functions, are reasonable accommodations available that would enable the employee to perform these functions;
  • Whether vacant positions exist that the employee would be qualified to perform and could be reassigned into;
  • Whether the employer has a policy of creating light-duty positions for employees who are occupationally injured and whether this benefit could be extended to the employee without posing an undue hardship; and
  • Whether the employee’s request for additional leave is definite in time and of a short duration, and if this extended leave could be provided without posing an undue hardship.


Seventh Circuit Opinion Confirms Flexible Analysis of Adverse Employment Actions

Contributed by Allison Sues, November 9, 2016

On October 19, 2016, the United States Court of Appeals for the Seventh Circuit reversed a District Court’s Rule 12(b) (6) dismissal of two plaintiffs’ retaliation claims brought under Title VII and the Illinois Human Rights Act. In Volling and Springer v. Kurtz Paramedic Services, Inc., Case No. 15-3572, two Emergency Medical Technicians (EMTs) alleged that their employer and its new subcontractor refused to hire them because they had reported and/or supported claims of sex discrimination and sexual harassment against the employer’s previous subcontractor to the Equal Employment Opportunity Commission.

gavelbwThe new subcontractor filed a motion to dismiss, arguing that the plaintiffs had not stated a viable retaliatory failure-to-hire claim because the plaintiffs had not applied for the position that they claimed they were denied. The District Court dismissed the retaliation claims after referring to the prima facie case for a retaliatory failure to hire, which required the plaintiffs to allege that they applied for and were qualified for the position sought.

On review, the Seventh Circuit examined the circumstances under which the plaintiffs claimed to have been refused a position to determine whether they alleged an adverse employment action distinct from a straightforward failure-to-hire claim. In this case, the employer terminated its contract with the previous subcontractor following the plaintiffs’ reports of misconduct and replaced it with a new subcontractor. The employer informed all the EMTs who had worked with the previous subcontractor, with the exception of the two plaintiffs, on how to apply for unpublished vacancies with the new subcontractor. The new subcontractor hired all of these applicants. The plaintiffs never applied and were not hired. The Seventh Circuit reasoned that the plaintiffs alleged a discriminatory practice slightly different than a failure to hire – the failure to inform them of the vacancies where other employees who had not engaged in protected activity received notice of the positions. The Seventh Circuit stated, “plaintiffs’ failure to apply stemmed from the very discriminatory practice they complained of, and their failure to apply need not bar their retaliation claims.”

Employers should note that a court’s analysis of retaliation claims may be flexible and stretch outside confines of oft-repeated prima facie cases. Discrimination and retaliation claims can stem from not only a failure to hire an applicant because of his or her protected characteristic or prior protected activity, but also for any disparate treatment in the way employers publicize or recruit for the position prior to the hiring decision.

EEOC Targets Employer Wellness Programs

Contributed by Jonathon Hoag

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it has filed suit against a second employer alleging the employer’s wellness program is in violation of the Americans with Disabilities Act (ADA).  The EEOC’s first lawsuit of this kind was filed a couple months ago alleging the employer’s wellness program was not voluntary and the employee was discharged for failing to participate in the program.  The ADA concern is that wellness programs often require “medical examinations” and involve “disability-related inquiries,” so participation in these programs must be voluntary (or job-related and consistent with business necessity).

In the latest case, the EEOC alleges that the employer imposed significant penalties on non-participating employees, which eliminated the voluntary nature of the program.  The EEOC claims that employees who refused to participate faced cancellation of medical insurance or the requirement to pay the entire premium cost.  Employees who participated in the program maintained coverage and only had to pay 25% of the premium cost.  The EEOC acknowledged that voluntary wellness programs are lawful, but it is scrutinizing whether the program is truly voluntary.  According to the EEOC, if the employer places significant penalties on employees who choose not to participate (e.g., shifting 100% of the premium cost to such employees, disciplining employees, or cancelling medical insurance), the program is not voluntary.

The EEOC previously announced that it intends to initiate rulemaking to address wellness programs, but proposed rules have yet to be published.  To date, the EEOC’s activity only indicates it is targeting programs that impose significant penalties on non-participating employees.  There has been no indication that the EEOC will target wellness programs that simply offer slight incentives to encourage participation, but the forthcoming rules should help shed more light on the EEOC’s enforcement plans in this important area.  In the meantime, employers should review current wellness plans to ensure they are truly voluntary in nature.

General Contractor Held Liable for Hostile Work Environment Against Subcontractor’s Employee

Contributed by Noah A. Frank

Title VII prohibits employers from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual’s race, color, religion, sex, or national origin.  Other state and Federal laws prohibit discrimination based on age, disability, veteran status, and other characteristics.

Recently, the Sixth Circuit Court of Appeals held that a general contractor could be liable for a hostile work environment directed towards its subcontractor’s employee under a joint employer theory.  EEOC v. Skanska USA Building, Inc., No. 12-5967 (6th Cir. Dec. 10, 2013). The court found the general contractor supervised and controlled its subcontractor’s employees’ daily activities, directed their performance, determined their hours and daily assignments, assigned their supervisors, handled complaints, held meetings regarding disagreements, and did not consult the subcontractor’s owners regarding its employees’ complaints.  In essence, the court found that the subcontractor generally did “nothing” with respect to his employees and was a “nonentity.”  The court noted that the subcontractor’s African-American employees were allegedly called a variety of hostile names and epithets including the “n-word,” and were subjected to graphic depictions, including a picture in the port-a-potty of a Caucasian person shooting an African-American person.  The offenders included the general contractor’s employees, other subcontractors, and third-parties.  The victims allegedly reported the conduct to the general contractor, which did nothing to resolve their complaints, and eventually directed the subcontractor to fire them as a “poor fit.”  The court held that there was enough evidence to support a determination that the general contractor jointly employed the subcontractor’s employees, and therefore could be liable under Title VII.

While this case is an example of an extreme hostile work environment, its impact is directly applicable to all employers, and shows a changing tide in EEOC practice and discrimination jurisprudence.  Under Title VII, employers are responsible for protecting their workers from other workers, customers, and third-party vendors.  Under the joint employer theory, it is conceivable that a court could find an innocent general contractor or borrowing employer responsible for discriminatory conduct and hostile comments made towards another at their workplace.  Further, while this case addresses a construction general contractor’s responsibilities, it is likely that the EEOC and state agencies would attempt to extend this argument to borrowing employers (including those using temporary staffing agencies) and others using subcontractors.

Practice pointer for best practices:

Employers should ensure that subcontractors and independent contractors have, maintain, and enforce EEO policies, including anti-harassment and anti-retaliation policies. These policies should be incorporated by reference into any contract for services.  In light of the recent decision, employers should ensure that they not only have written policies and procedures in place to handle discrimination, harassment and retaliation issues, but must also carefully train all employees, supervisors and managers on the need to better identify, prevent and remediate such issues.

Government Shutdown Is In Its Second Week…What Does This Mean for the Labor and Employment World?

Contributed by Samantha Esmond

Unless you have been living under a rock, you have probably heard that the federal government has shut down all non-essential services for the first time in seventeen (17) years. As the shutdown is in its second week, the length of the shutdown is still highly unpredictable. Given the fact that the key players in Washington are still pointing fingers (and the blame), it seems more and more likely that the shutdown will be here to stay for days, possibly even weeks.

So, what does this mean for the labor and employment world? Not too much. Even with the shutdown of many key government agencies, employers must continue to comply with all statutory provisions, such as Title VII, ADA, FLSA, and the National Labor Relations Act. However, many “non-essential” government agencies have provided contingency plans explaining how they will operate during the shutdown. A sample of these key agency contingency plans can be accessed here:

  • Equal Employment Opportunity Commission (EEOC): Per its contingency plan, “only activities involving the safety of human life or the protection of property will continue.” For example, the EEOC will continue to docket and examine new charges to determine whether prompt judicial action is necessary to protect life or property. Nonetheless, the EEOC will cease the following activities during the shutdown:  (1) staff will not be available to answer questions from the public or to respond to correspondence from the public, (2) the EEOC will continue to accept charges that must be filed in order to preserve the rights of the claimant, such charges will not be investigated, (3) mediations will be cancelled, (4) federal sector hearings will be cancelled, (6) outreach and education events will be cancelled, and (7) FOIA requests will not be processed.
  • Department of Labor (DOL): The majority of employees working for the DOL will be furloughed. Accordingly, many of its programs and services, which are not “critical,” will be impacted. To view the DOL’s contingency plan, click here.
  • National Labor Relations Board (NLRB):  In essence, only such government activities necessary to prevent an imminent threat to the safety of human life or the protection of property may be undertaken. As such, the Office of Inspector General hotline will remain operational during the shutdown; however several services of the NLRB will not be available during the shutdown. The NLRB has updated its website with a link to its contingency plan, which is available here.
  • E-Verify:  E-Verify will NOT be available during the government shutdown and employers will not be able to access their accounts.

Employer Takeaway:  Generally, employers are still obligated to meet all statutory deadlines and continue to comply with all statutory and regulatory requirements during the shutdown. We will continue to monitor the happenings in Washington D.C. and provide updates as this situation develops.

EEOC Trolling for Plaintiffs? Say it Ain’t so…

Contributed by Julie Proscia

There are many disturbing facets to this story that will both outrage and terrify employers. As such, I will try to narrow the scope as best as possible and weed through the issues. Last month, Case New Holland Inc. filed suit against the federal Equal Employment Opportunity Commission (“EEOC”) in the U.S. District Court for the District of Columbia. The suit alleges that the EEOC unconstitutionally trolled for class members in a potential age discrimination class action by essentially spamming over 1,000 of Case New Holland’s business email domains.  The facts alleged are outrageous for two reasons.  First, the EEOC sent a “spam like” survey regarding working conditions to over 1,000 email addresses and second, it did this two years after the complaint was filed and after allegedly remaining silent and not pursuing any charges for over a year.

The latter fact, the dormancy or silence, is definitely not a new issue. Charges and complaints often languish in EEOC purgatory for months if not years. The length of time for an investigation is not capped with a statute of limitation and there is no watch dog per se to spur completion. Once a charge gets sent to the bottom of the pile, it can be forgotten about for a long time. As management, this can be a catch twenty two: it is frustrating in the desire to have closure, but also allows for a distance that eases tensions and memories. 

The more controversial part of the story is the email blast.  The mass email blast takes the investigation process to a whole new digital level of response that is disconcerting. The mass email was transmitted at 8:00 a.m. and was sent in survey form.  Not only did this early morning email disrupt the enterprise, but it also elicited statements from upper level management that represent the corporation. This email went out not only to non-managerial employees, but also to members of management and executive level staff, including members of the counsel’s office. Some of the managers and executives were at a level where their responses could bind the company and be classified as admissions, unlike in the discovery process of a case where depositions are attended by counsel, this email went out blind.  Case New Holland Inc. was never showed nor told of the survey before its transmission. 

That brings us to back to the complaint. In its complaint, Case New Holland Inc. is seeking a permanent injunction prohibiting the EEOC from soliciting its employees with mass emails; a court order requiring that the EEOC turn over any and all information obtained through the email survey; and an order enjoining the EEOC from utilizing the information obtained and from disseminating the information to any third parties.  All of which are aggressive requests to combat an aggressive move on the part of the EEOC.

This is a case that we will monitor closely and update you on. Technology may make our lives easier, but it also adds an increased dimension of liability. If agencies can send out a mass spam request for information without a company’s knowledge, the class of plaintiffs may have just increased exponentially.

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.