Peacock Tales • Spring 2016
Employers, large and small, may often feel bombarded with advice about what may or may not be said or done in addressing workplace concerns, the extent to which employees’ “outside” conduct and comments may be considered by employers and similar issues. Although each of these issues warrant careful discussion, we feel compelled to comment at this time about an often overlooked, and legally precarious, aspect of the employment relationship: the employment application. In our experience, employers continue to use applications which ask legally impermissible questions, some of which could well serve as the basis for discrimination claims by unsuccessful applicants. This article serves as one component of a refresher course, our “back to basics” approach to advising employers.
Questions of interest to employers can be grouped into three categories: (1) legally permissible; (2) legally impermissible; and (3) irrelevant. Note that although irrelevant questions themselves may not be legally impermissible, including them on application forms can require answers which provide information that the employer was not permitted to ask about directly. In addition, if questioned by an investigating agency, such as the Pennsylvania Human Relations Commission or the Equal Employment Opportunity Commission, an employer may be hard pressed to justify their inclusion because, of course, they are irrelevant. This will not be helpful in supporting an employer’s claim that the application process was appropriate.
What are the legally permissible questions? In addition to directory information, such as name and address, the position for which the application is submitted, and availability with respect to days and hours to work, an employer may ask an applicant about his educational background (without reference to dates of attendance/completion), prior work experience and whether he/she is legally permitted to work within the United States (without reference to completion of the I-9 form at this time). Moreover, an employer may ask questions specific to the duties of the position for which application is made, relating to an employee’s skill set, physical competencies and certifications. If driving is an essential function of the position, an employer may ask if the applicant has a current, valid driver’s license. To do so appropriately, however, the employer should have a written description for each position, to provide to the applicant contemporaneously with the application form. This will allow the employer to legitimately ask about a concern significant to all employers: can the applicant meet the physical requirements of the position listed in the job description: lifting, standing, climbing, crawling, etc.? Importantly, the application form can include the seminal question: is the applicant able to perform the essential functions of the position with or without reasonable accomodations?
Questions specifically relating to the applicant’s health or medical history, at this point in the pre-employment process, are legally impermissible. This means, of course, that during the application process, questions about prior workman’s compensation claims are forbidden. Under the law, these inquiries are forbidden because they may cause the employer to view the applicant as a disabled person, even if the applicant has fully recovered; the Americans with Disabilities Act provides certain protections for otherwise qualified applicants thought to be disabled, as well as those who are in fact disabled. Although an employer may require an applicant to have a physical examination after an offer of employment has been made, but before the employee begins work, the employer may not venture into this area prior to offering the applicant the position. To do otherwise may well violate the applicant’s rights under the ADA and/or the Pennsylvania Human Relations Act.
Other questions, impermissible during the application process, include questions about gender, race, religion, date of birth/age, marital status, social security number, child care arrangements, and/or citizenship. While some of these attributes may be apparent when an applicant appears in-person, or if in-person interviews are conducted, the mere fact that the information may at some point be obvious does not justify inclusion of the question. Nor may an employer inquire into an applicant’s criminal history, unless the inquiry is required by law, as it is for some employers, or unless felony or misdemeanor convictions of certain crimes relate to suitability for the position sought, in which case, the question must be tailored to crime of a nature relevant to the position. While some of these questions may be relevant for payroll processing purposes, they are not relevant unless and until the applicant is actually hired for the position.
Finally, we have seen a number of questions included on application forms which are not relevant; usually these seemingly innocuous questions are included because the employer would like to know something personal about an applicant, to provide the employer a basis to narrow down those to be interviewed from among a large group of applicants, or to allow the establishment of rapport during an interview. The problem is that answers to these questions can lead to information which is legally problematic. For example, asking an applicant whether he belongs to any civic, social or fraternal organizations could well disclose his religious affiliation, ethnicity and/or race.
We encourage employers to review their application forms and prepare appropriate position descriptions to be used in conjunction with the application forms. We also encourage employers to adhere to the same limitations during the interview process. Finally, should you have any questions, we encourage you to contact one of Peacock Keller’s employment attorneys.
Peacock Keller, LLP • 70 East Beau Street • Washington PA 15301 • 724-222-4520