Everyone has heard the old saying, “There is no such thing as a stupid question.” Questions show interest, start conversations and create bridges for connection.  So, it’s no wonder that, when it comes to recruiting, employers devote the majority of the screening process to asking questions. Business owners hope that by making the right inquiries, they will find the rock star talent they need to help ignite and sustain strong, profitable growth.

In theory, a thorough questioning of candidates makes sense. With the cost of making a bad hire amounting to almost 15 times the employee’s salary, there really should be “no stupid questions” in recruitment either, right?

Sadly, no. When it comes to hiring, some questions are not only bad; they are illegal. And unless you want to find your business on the receiving end of a US Equal Employment Opportunity Commission (EEOC) charge or discrimination lawsuit, employers must take care to avoid making illegal inquiries at all costs, especially on job applications.

What is a Job Application?

While it may seem obvious, it’s useful to revisit the job application itself. The application is a list of questions that employers use to collect factual data on each applicant like work experience, skills, certifications and education.

Job applications help business owners impartially compare candidates. Unlike a resume and cover letter, on job applications, applicants answer the same questions in a standard format. This arrangement gets rid of the presentation and hyperbole present in most cover letters and resumes and helps employers get right to the facts when comparing applicants –apples to apples and not apples to oranges.

What You Can’t Ask

Federal discrimination laws prohibit job application questions that discriminate on the basis of race, sex, national origin, religion, disability or age or create a disparate impact for one of these protected classes. While there is no way to list every unethical or illegal question out there, there are four common themes that business owners should take care to avoid when creating or reviewing their job applications.

Birth dates and age

Questions concerning an applicant’s date of birth, graduation date, or retirement plans can give the perception that an employer is using age as a factor in the hiring process. Asking these age-related questions can potentially lead to discrimination claims, if members of a protected class are affected. Unless the law requires a minimum age to perform a particular job, employers should immediately remove all age and birthdate-related questions from their applications.

Familial concerns

Most family-related questions are illegal, because they can inadvertently ask a candidate to reveal information about her race, national origin, religion, age, sex or membership in another protected class. Some common examples of prohibited inquiries related to family include:

  • Asking whether the applicant is married, divorced, separated, widowed or single;
  • Asking if the applicant is gay, straight, bisexual, transsexual or transgender; and
  • Asking about childcare needs, pregnancy, adoption or foster care

Disability and Health Status

Both the Americans with Disabilities Act and the Family and Medical Leave Act prohibit discrimination and retaliation against applicants who exercise their rights under these laws. Federal discrimination laws, therefore, prohibit any employment application questions related to one’s health status. Some common health-related questions to avoid include:

  • Whether the applicant has a disability that will affect job performance;
  • Whether the applicant has ever been injured at work or filed for workers’ compensation benefits; and
  • How many sick days the applicant took the previous year.

Race and Religious Inquiries

Employers should never ask any questions regarding an applicant’s race, color, national origin and religion for any reason including:

  • What foreign languages the applicant can speak, read or write (unless a foreign language is a job requirement);
  • How the applicant feels about working with members of different races or religions; and
  • The name of the applicant’s priest, rabbi, imam, minister or other religious leader.

LEGAL “FUN-BUSTERS” (AND HOW TO AVOID THEM): CASE STUDY – THE CALIFORNIA DEPARTMENT OF CORRECTIONS, SOCIAL SECURITY NUMBERS AND DISCRIMINATION

Given the responsibilities associated with certain types of employment, employers may unknowingly and innocently ask questions on job applications that seem necessary and related to the work, but in practice lead to discriminatory hiring. One example of this is the case Victor Guerrero v. The California Department of Corrections and Rehabilitation (CDCR).

In this case, Victor Guerrero sued the CDCR after the CDCR denied him employment as a corrections officer because he responded “yes” to the application question,“(h)ave you ever had or used a Social Security number other than the one you used on this questionnaire?” The CDCR argued that the question was important because an affirmative answer demonstrated a lack of integrity and good judgment.

In contrast, Mr. Guerrero argued that the question had a disparate impact on Latinos, as all applicants who were denied employment because of an affirmative response to that question were Latino. Mr. Guerrero further explained that he responded yes because he was given an illegal Social Security number at 15 years of age, so he could work to help his struggling family. At the time, he did not know that the number was invalid. When he discovered the Social Security number was fake, he began using a taxpayer identification number instead. He continued to use that number until he became a citizen in 2010.

Ultimately, the court agreed with Mr. Guerrero. It found that the CDCR’s question violated anti-discrimination laws because it disproportionately affected a protected class based on race – Latinos. The court also found no business necessity related to the job that required such a question. This case demonstrates that no matter how important the question may seem, if it creates a disparate impact, it may be illegal.

Ready to get the facts on your applicants without violating the law? Download our free employment application to start gathering data today. And if you think you need a customized employment application, don’t create one alone. Make sure you contact an attorney to keep you out of legal trouble and avoid any legal “fun-busters.” InPrime Legal can help. Contact us at 770-282-8967 for a no-obligation consultation.