Keep Identifying Information out of Job Applications and Advertisements

by Foley & Lardner LLP

Certain job advertisements have drawn media scrutiny in recent weeks, including dozens of postings seeking applicants with a “neutral” accent for language teaching, sales, and IT support jobs. Another trend, in the opposite direction, is that some advertisements are specifically directed at foreign workers with H-1B visas, as one headline said “Java Developer – (H-1B Only).”

While these are both fairly obvious examples of national origin discrimination, the recent ads are an important reminder that employers should double-check job postings and applications to make sure they do not explicitly or implicitly exclude certain groups or elicit information about any protected characteristic. Federal and state law do not permit employers to consider an applicant’s race, sex, religion, national origin, age, disability, or any other protected categories when making hiring decisions. Accordingly, job advertisements must be “neutral” and cannot favor younger workers, for example, by seeking “recent college graduates,” which tends to exclude older workers. The only exception is if age, or another characteristic, is a bona fide requirement of the job.

With respect to applications, the easiest way to defend against an applicant’s claim that he or she was discriminated against in the hiring process on the basis of a particular characteristic is by not knowing about that characteristic in the first place. Therefore, employers should not ask applicants any questions on an employment application form that would reveal any protected characteristics or categories. While federal contractors subject to affirmative action requirements must ask applicants to complete “voluntary self-identification” forms to keep track of applicants’ race, gender, and other information, such self-identification forms must always be kept separate from application materials.

Below are examples of questions that should never be included on any employment application because they reveal an applicant’s protected characteristic:

  • Date of birth – reveals the applicant’s age. (You may ask if an applicant is at least 18 years old or can furnish proof of age, if age is a job requirement.)
  • Graduation dates and when attended school – reveals, or at least suggests, the applicant’s age. (Simply ask whether the applicant has graduated or holds a degree.)
  • Maiden name – reveals marital status and disproportionately affects women. (This may be requested separately as part of a background check.)
  • Citizenship and national origin. (You may ask if the applicant is legally authorized to work in the United States.)
  • Language proficiency – may reveal the applicant’s national origin. (You should only ask about language proficiency if it is required for the job.)
  • Child care arrangements or children – reveals the applicant’s family responsibilities and disproportionately affects women.

Even if an application question does not reveal an applicant’s protected status, the question may still be problematic if it can be used in a discriminatory way. For example, because certain racial minority groups have higher rates of arrest and conviction records, the EEOC believes that blanket exclusions for applicants with criminal records are discriminatory. The same goes for asking applicants about their credit history.

Additionally, the use of facially “neutral” criteria to screen out applicants may be unlawful if the exclusion is not job related. Height restrictions, for example, can disproportionately affect women and certain racial minority groups, so employers should not ask about height on an application, unless a height requirement is necessary to perform the particular job.

There are many other legal issues associated with job advertisements and applications, and you should consider having legal counsel review those materials to ensure they are in compliance with state and federal law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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