Job applications are designed to help provide information about potential candidates for employment. These documents generally require the applicant to answer a variety of questions. It is important for employers to craft these documents carefully as certain questions can result in litigation.
What types of questions can lead to litigation? Some examples are obvious. Asking questions about an applicant’s race, religious affiliation or sexual orientation are best avoided.
Additional examples include:
- Age. An employer should avoid asking about an applicant’s age unless age is a “bona fide occupational qualification” per California’s Department of Fair Employment and Housing.
- Health. Questions regarding an applicant’s health status are allowed only if the inquiries are connected to the ability of the applicant to perform essential job functions.
- Name. Even questions about an applicant’s name can be suspect. Asking for the applicant’s current or previous name is allowed, but questions that indicate an interest in ancestry or the origin of the name are generally frowned upon.
Although these three examples provide some guidance, they are only a small segment of the questions used in applications that can provide support to a discrimination claim.
What can reduce the risk of litigation? In addition to treading carefully with the questions noted above, employers can also take some proactive steps to avoid litigation resulting from the content of an employment application.
As noted in a recent publication by the Society for Human Resource Management (SHRM), inclusion of certain documents within an application packet can help. An at-will disclaimer is one example. This document is used to explain that the application does not result in a contract or offer of employment and that if an offer of employment results the employer retains the right to terminate the position at-will.
A nondiscrimination statement is also wise. This statement clarifies that the business is an equal opportunity employer. In some cases, a background check acknowledgement is also wise. This should be in the form of a standalone document, not just a provision within other paperwork.
The risk of litigation is also mitigated by seeking the legal counsel of experienced business and commercial litigation representation. An attorney can either review and adjust existing documents or craft an application packet to meet your business’ needs while remaining within the confines of the law.