September 22, 2015
The Employment Application
a. The “job-related” test for pre-employment inquiries
Federal courts and agencies have held that EEOC laws prohibit employers from making any pre-employment inquiries that are not job-related. Pre-employment inquiries that directly or indirectly result in or suggest a limitation of job opportunities because of age, race, sex, color, religion, national origin, or handicap usually will be treated as unlawful unless the employer can show that it has a valid reason for requesting the information.
b. Prohibited questions
Both the EEOC and various state fair employment agencies have issued guidelines listing specific “acceptable” and “unacceptable” questions. (See Handout.) In addition, the EEOC’s Technical Assistance Manual on the Americans with Disabilities Act contains information regarding questions that may not be asked on the job application, such as:
- How many days were you absent from work because of illness last year? (Pre-employment questions about illness may not be asked,
because they may reveal the existence of a disability. However, an employer may provide the information on its attendance requirements and ask if an applicant will be able to meet these requirements.)
- Do you have any disabilities or impairments that may affect your performance in the position for which you are applying? (This question should not be asked even if the applicant is requested in a follow-up question to identify accommodations that would enable job performance. Inquiries should not focus on applicant’s disabilities. The applicant may be asked about ability to perform specific job functions, with or without a reasonable accommodation.)
Have you ever been treated for drug addiction or alcoholism? (Information may not be requested regarding treatment for drug or
alcohol addiction, because the ADA protects people addicted to drugs who have been successfully rehabilitated, or who are
undergoing rehabilitation, from discrimination based on drug addiction.)
- Have you ever filed for workers’ compensation insurance? (An employer may not ask about an applicant’s workers’ compensation history at the pre-offer stage, but may obtain such information after making a conditional job offer. Such questions are prohibited because they are likely to reveal the existence of a disability. In addition, it is discriminatory under the ADA not to hire an individual with a disability because of speculation that the individual will cause increased workers’ compensation costs.)
c. The Applicant’s Acknowledgement Statement
It is important that the applicant sign an acknowledgement so that he/she cannot later disclaim the information they have provided, and so that the employer has a written record of the parties’ understanding of some of the conditions surrounding the hiring of the applicant. Some important items to include in an acknowledgement are:
- An affirmation by the applicant that the information provided in the application is true;
- Acknowledgement by the applicant that any offer of employment is contingent upon successful completion of a pre-employment physical which will include drug and alcohol testing;
- Acknowledgement and permission by the applicant for the employer to conduct reference and background checks (also see the discussion below regarding the Fair Credit Reporting Act);
- Acknowledgement by the applicant that any offer of employment is contingent on timely producing documentation required by the
Immigration Reform and Control Act of 1986; and
- Acknowledgement by the applicant that his or her employment is terminable-at-will.