Employers must give careful consideration to the questions used in an employment application. A number of problem areas have arisen concerning questions which are included in an employment application or asked during the course of a job interview. There is no specific prohibition of drug-testing under federal law although several states have imposed certain restrictions on the use of drug tests.
All employers are required to complete a Immigration and Naturalization Form I-9 for each new employee. This form verifies that the employer has checked documents which show a person's right to work in the U.S. The hiring of an unauthorized alien can subject an employer to fines and imprisonment.
Although an employer may not discriminate based upon gender, Title VII does not prevent discrimination on the basis of sexual orientation. However, some states and cities have laws which prohibit discrimination in employment on the basis of sexual orientation.
There are a number of things an employer is prohibited from asking the applicant. These include:
- Age/date of birth: Generally, age is considered not to be relevant in most hiring decisions, and therefore, date of birth questions are improper. The Age Discrimination in Employment Act protects employees 40 years old and above. It is permissible to ask an applicant to state his or her age if it is less than 18. Internal uses of date of birth for computations with respect to a pension or profit-sharing plan, this information can be obtained after the person is hired.
- Race, religion, national origin: These questions are generally inappropriate, either on employment applications or during job interviews. Ordinarily, Title VII of the Civil Rights Act of 1964 requires that employers make reasonable accommodations for their employees’ religious practices, thus eliminating the necessity for asking whether an applicant’s religious beliefs would prohibit his or her working at certain times and on certain days in most situations.
- Physical traits, disabilities: If questions are asked related to height and weight requirements such requirements should be directly related to job performance .The Americans with Disabilities Act prohibits general inquiries about disabilities, health problems, and medical conditions.
- Union membership: It is not proper for a prospective employer to ask the applicant whether or not if they are a member of a union.
- Arrest, conviction records: The EEOC takes the position that questions concerning arrests are improper unless the applicant is being considered for a "security sensitive" job and the employer does an investigation to determine, in effect, whether the applicant was likely to have committed the crime for which he or she was arrested. The EEOC also says that questions about an applicant’s conviction record are improper unless the employer can show that the conviction is in some way related to the position being applied for. The EEOC takes these positions because of statistics which show that minorities are arrested and convicted at considerably higher rates than whites.
- Garnishment: Questions concerning whether an applicant has been the subject of garnishment proceedings should be eliminated from employment applications. Using the garnishment history of an applicant in determining whether he or she will be hired is probably discriminatory, because more minority members have their wages garnished than do with whites.
- Citizenship: The anti-discrimination provision of the Immigration Reform and Control Act provides that an employer cannot discriminate because an applicant is not a U.S. citizen. Therefore, citizenship questions should probably be deleted from employment applications. The Form I-9 is the appropriate place to determine citizenship status instead of the employment application.
- Drugs, smoking: It is permissible to ask an applicant if he or she uses drugs or smokes. The application also affords an employer the opportunity to obtain the applicant’s agreement to be bound by the employer’s drug and smoking policies. The application also affords an employer an opportunity to obtain the applicant’s agreement to submit to drug testing.
- Other problem areas: Questions concerning whether an applicant has friends or relatives working for the employer may be improper, if the employer gives a preference to such applicants. Questions concerning credit rating or credit references have been held to be discriminatory against minorities and women. Questions concerning whether an applicant owns a home have been held to be improper as being discriminatory against minority members, since a greater number of minority members do not own their own homes.