Unlawful Job Applications

Name

A job application may ask for an applicant’s full legal name, nicknames or aliases.  It should not ask for maiden names or “Christian names.”  It should not ask applicants to circle Mr., Mrs., or Miss.  All of these practices may raise questions of gender, marital status, and religious affiliation.

Address

An application may request the applicant’s full address.  It should not ask with whom the applicant lives, or whether the applicant owns or rents the property.  Such inquiries may expose or suggest sexual preferences, marital status, or minority status, and in virtually all cases, are irrelevant to the job opening.

Age

An application form may inquire whether an applicant is at least 18 years old.  This is relevant in order for the employer to determine if the applicant is old enough to work and to overcome any concerns about child labor laws set forth in the Fair Labor Standards Act (FLSA).  It may also be relevant in certain industries where minors cannot be employed, such as restaurants serving alcohol or factories in which dangerous machines are operated.  The form should not ask the applicant’s age unless there is a specific business justification for the question. The applicant’s date of birth should likewise not be requested.

Application forms should also avoid questions designed to reveal an applicant’s age.  For example, asking for the date of high school graduation usually reveals an applicant’s current age.  In one case, Smiarowski v. Philip Morris USA, 2007 WL 1159580, a rejected job applicant took issue with the employer’s question: “Year you started working professionally.”  In her appeal to the U.S. Supreme Court, the employee charged that such a question was a covert method of ascertaining her age, in violation of the Age Discrimination in Employment Act (ADEA).

Birthplace and Nationality

A job application should not ask questions designed to reveal an applicant’s place of birth or national origin.  These questions are rarely relevant and serve only to raise red flags about the employer’s motives.  Similarly, there is no basis for inquiring about the birthplace or ancestry of an applicant’s parents, spouse, or other family members.  Birth certificates should not be requested as part of the application process.

Applications that seek information about national origin may violate Title VI of the Civil Rights Act (CRA) of 1964, the Immigration Reform and Control Act (IRCA) and the Job Training Partnership Act (JTPA).

Religious Affiliation

An employer should not require applicants to disclose their religious affiliations, or their memberships in any religious organizations.  Nor should an employer require applicants to state whether they eat or don’t eat certain foods, or whether they observe or don’t observe certain holidays.  Instead, outline the job requirements and ask if the applicant can accept them.  For example, the interviewer might say, “This job requires full-time hours, 9 to 5, Monday through Friday.  Do you believe you can perform this job as I have described it?” Any question calculated to reveal an applicant’s religious faith is, in and of itself, potentially discriminatory and should be avoided.

On some occasions, where a religious affiliation is inextricably related to the job opening (such as, for example, a job application for a clergyman), inquiring about religious affiliation is appropriate.  Yet such inquiries will be narrowly construed to apply only to limited circumstances in which religious affiliation is integral to the very nature of the job sought to be filled.  For example, the Texas-based Presbyterian Children’s Home and Service Agency, asked the following question on its job application: “Do you feel that you can serve without reservation in this agency, which is operated by the Presbyterian Church, if you are not a Presbyterian?” Georgette Speer, a Jewish woman, applied for a job as a senior adoption worker at the agency.  She responded to the question on the application in the affirmative, but was subsequently informed that the agency had a policy of hiring only Christians.  Ms. Speer filed a discrimination charge with the Texas Commission on Human Rights which subsequently joined her in a lawsuit against the Presbyterian adoption service. Speer v. Presbyterian Children’s Home and Service Agency, 847 S.W. 2d 227 (Tex. 1993).

Race, Color, and Ethnic Background

It goes without saying that job applications should not require the disclosure of an applicant’s race, color, or ethnicity.  Such questions potentially violate the anti-discrimination provisions contained in Section 1981 and Title VII and the Civil Rights Acts and may give rise to a claim under Section 1983 for violation of the Fourteenth Amendment guarantee of equal protection of the law.

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