Pre-employment issues

Before a hiring decision is made, a position description should be written clearly defining exactly the type of individual who will meet the criteria of the job and the culture of the department and the company.

The content of a job advertisement

Federal law prohibits an employer from using a job advertisement that limits or prefers applicants based upon:

• race
• color
• religion
• sex (which includes gender identity or expression and sexual orientation)
• national origin
• age.

State laws also may contain similar or additional restrictions. For instance, some states, such as, New Jersey, have enacted a prohibition against employers excluding individuals who are currently unemployed from consideration for employment.

Under Title VII of the 1964 Civil Rights Act (Title VII) and the Age Discrimination in Employment Act (ADEA), an employer may indicate a preference based upon religion, sex, national origin, or age if it is a “bona fide occupational qualification” (BFOQ) for employment.  This exception is limited. 

Example - In certain situations, a prison may establish a BFOQ and only hire employees that are the same gender as the prison inmates.

There is no BFOQ exception for race or color preferences.

Some employers, including certain federal contractors, may be required to include the notation “equal opportunity employer” on job advertisements. 

The Americans with Disabilities Act (ADA) does not require employers to actively recruit individuals with disabilities. However, an employer may not engage in recruitment activities that exclude candidates with disabilities and should make information about job openings available to people with disabilities.

The content of a job description

Managers and employees should be involved in writing job descriptions because they possess the most knowledge. Provide them with a job analysis questionnaire that asks for information such as the following:

• What is the overall purpose of the job? This will provide a job summary.

• What are the essential functions of the job and the percent of time devoted to the tasks? A good definition of "essential functions" should be included.

• Information regarding the physical, visual, mental, and audible demands of the job needs to be identified and included in the description in order to comply with the ADA.

• A sample job analysis questionnaire and job description can be found at the top of this chapter under the Files tab for download.

Legal qualifications for employment

Any required qualification for employment is unlawful if it has an “adverse impact” on any protected group and disproportionately eliminates more applicants in a protected group from consideration than a non-protected group, unless the employer can prove that the requirement is job-related and consistent with business necessity. For instance, a requirement that an applicant have a high school diploma may disproportionately exclude certain racial groups. Similarly, if an employer refuses to consider applicants with extensive prior experience because the employer believes the applicants are overqualified, the employer may be accused of unlawfully screening applicants based on age.

Legal issues may arise if an employer considers the following factors or uses the following requirements when evaluating job applicants:

• arrest record and/or conviction record
• weight lifting ability
• minimum height and weight requirements
• maximum weight requirements
• garnishment history, credit rating, and bankruptcy
• minimum educational requirements
• grooming requirements
• citizenship
• language requirements.

Arrest and conviction records

Increasingly, employers are facing the dilemma of how extensively they should prescreen an applicant’s criminal background. On the one hand, they wish to avoid negligent hiring suits for an employee’s violent or harassing behavior. On the other hand, they fear accusations of discrimination. 

The EEOC and many courts have taken the position that policies precluding the hiring of applicants with arrest records result in discrimination against minorities, because a greater percentage of minorities tend to have arrest records than do non-minorities. Additionally, a majority states, as well as cities, and counties have enacted laws, referred to as “ban-the box laws,” requiring that public entities refrain from asking about conviction records on job applications. Many states, including California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Oregon, Rhode Island and Vermont, have laws requiring private employers to remove criminal history questions from job applications. These laws differ as to when in the hiring process an employer may seek information regarding an applicant’s conviction records.

In November of 2018, the EEOC issued Enforcement Guidance regarding the use of arrest and conviction records. This guidance provides that “in some instances,” use of an applicant’s criminal history may violate federal law prohibiting employment discrimination.

The EEOC, echoing previous guidance regarding an employer’s use of criminal history, continues to assert that arrest records are not proof of criminal conduct (although the existence of an arrest may “trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action”). On that basis, if it appears that the applicant or employee actually engaged in the conduct for which he or she was arrested, the conduct is job-related and the conduct occurred relatively recently, then the employer may be justified in excluding the applicant/employee. However, the EEOC continues to assert that an employer’s exclusion of an applicant based solely on an arrest record is not job-related and is inconsistent with business necessity. 

To the contrary, the guidance states that an employer may consider a conviction (as opposed to an arrest) as conclusive evidence that a person has committed the crime alleged. After considering all of the circumstances, if the employer reasonably concludes that the applicant’s or employee’s conduct is evidence that he or she is not suitable to perform the duties of the position in question, the employer may reject or terminate that person. In all cases, a “criminal conduct exclusion” must be job-related and consistent with business necessity. Thus, employers who refuse to hire an applicant because of an applicant’s criminal history records may later be required to show, in a discrimination suit, that the criminal conduct directly diminished the applicant’s suitability to perform the job. 

Because an applicant might not truthfully reveal his or her arrest or conviction record and depending on the position and the employer’s needs, it may be prudent to check outside sources. The three most common methods are:

1. contacting the applicant's references (past employers)

2. contacting law enforcement agencies or reviewing court records in locations where the applicant has spent time, such as places where he/she when to school, had other jobs, and the like, as disclosed on the employment application

3. hiring a private investigator or agency to perform a background check.

Because some of these investigative methods may be unlawful or require certain disclosures to the applicant under federal law, counsel should be consulted before adopting any investigative method other than job reference checks. For instance, as stated previously, an employer’s inquiries into or access to criminal or arrest record information may be unlawful or severely restricted. Criminal, credit, and other types of background checks performed by third parties are usually subject to the requirements of the Fair Credit Reporting Act (FCRA). Further, some state laws may limit or restrict an employer’s ability to make such inquiries. 

Under the EEOC Enforcement Guidance discussed previously, when an arrest or conviction record is revealed the issue of “job-relatedness and business necessity” arises – that is, whether the conduct underlying the arrest makes the applicant unfit for the position. An employer can establish this in two ways: 

1. by being formally validated under the Uniform Guidelines on Employee Selection Procedures

2. by performing "targeted screens" such as an individualized assessment of the applicant's criminal history using the following considerations:
   • the nature and gravity of the offense
   • the time that has passed since the arrest
   • the nature of the position sought.

Employers utilizing “targeted screens” should carefully consider these elements to determine whether a business justification exists to exclude the applicant from employment based on the arrest or conviction. The EEOC’s policy guidance also provides that any individualized assessment will consist of a notice to the individual and an opportunity to demonstrate that the exclusion should not be applied, as well as consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion. 

Weight-lifting ability requirements

Designating a job as “male only” because it requires lifting heavy weights or similar strenuous activity violates Title VII. A requirement that an employee be able to lift a certain minimum weight may also be unlawful because it may have an adverse impact on women. If the requirement does have an adverse impact, the employer must show that the requirement is job-related and consistent with business necessity. In some cases, the employer must also show that less restrictive alternatives are not acceptable. Weight-lifting requirements may also create issues under the ADA. Employers may need to accommodate applicants who cannot meet the weight-lifting requirements because of a disability.

Height and weight requirements

A requirement that employees be a certain height or weight may have an adverse impact on women, since women are statistically shorter and lighter than men. Such requirements may also have an adverse impact on certain nationalities or other protected groups and could be determined to be unlawful unless the employer can prove that the minimum height or weight is job-related and consistent with business necessity. In some cases, the employer must also show that less restrictive alternatives are not acceptable.

Employers sometimes utilize policies excluding obese individuals from employment due to asserted health or insurance risks.  Such policies may be unlawful. In some cases, individuals who are obese may be protected by the ADA. Additionally, an employer may not explicitly apply different indicators of physical attractiveness to burden one gender disproportionately. 

Garnishment, credit rating and bankruptcy

Most states have enacted laws restricting an employer’s ability to make employment decisions based upon garnishment of an employee’s wages. Additionally, individuals with one or more garnishments of one debt are protected from discharge under Title III of the Consumer Credit Protection Act. Under Title VII, employers may be found to have discriminated if they refuse to hire a person solely due to bad credit references because racial minorities may not be accorded the same advantageous credit status that is often given to non-minorities. Unless a potential employer is prepared to demonstrate the job-relatedness of credit inquiries, credit standing alone should not be the basis for denying employment. If the applicant is applying for a position in which serious credit problems would adversely affect job performance, such as an accounting position, an employer might be able to demonstrate the job-related necessity of such a requirement. Federal law also prohibits employment discrimination “solely because” an individual has:

• sought protection under the Bankruptcy Act
• been insolvent before seeking protection under the act
• not paid a debt that is dischargeable under the act.

Educational requirements

The EEOC and most federal courts do not favorably view employer attempts to require a high school diploma or college degree from a job applicant unless doing so is job-related and consistent with business necessity. Due to historical discrimination and limited educational opportunities for some minority groups and older persons, statistics may show that a greater percentage of these persons lack formal educational achievement. Again, the employer must be prepared to show that the requirement is job-related and consistent with business necessity. In some cases, the employer must also show that a less restrictive alternative is not acceptable. The EEOC and the courts have required employers to show that a degree or diploma accurately demonstrates a suitability to perform the task in question and that all - or substantially all - of the applicants who do not have this diploma or degree are unable to perform the task.

Grooming requirements 

Grooming requirements are generally lawful. However, depending upon the circumstances, the law may require an employer to modify them for certain individuals. Some grooming requirements have been challenged on the grounds that they discriminate against individuals based on sex, religion or disability. If an employee sincerely holds a religious belief that conflicts with an employer’s grooming requirements, the employer will be required to “reasonably accommodate” the employee’s religious belief unless such accommodation would impose an “undue hardship” on the employer. Examples of “reasonable accommodation” in this context might include allowing employees with long hair to work with masks or hairnets or assigning such employees to jobs in which a grooming requirement is not necessary for safety reasons.  

Employers should also be aware that some states, including California, Illinois, Kentucky, Maryland (Montgomery County), Michigan, New Jersey, New York, Ohio (Akron, Cincinnati and Toledo), Wisconsin, Virginia, are moving toward an interpretation of racial discrimination laws by which they encompass discrimination based upon hair. Thus, to the extent an employer has a provision in its employee manual or elsewhere that sets forth restrictions as to grooming hair, including restrictions as to length or style or volume, it should consider removing such provision, or, at a minimum, revising it, to ensure that it is not applied in a discriminatory manner.

Citizenship requirements

The Immigration Reform and Control Act (IRCA) prohibits discrimination against citizens and “intending” citizens. While the IRCA makes it unlawful to hire an illegal immigrant or anyone else who is not authorized to work and cannot produce proof of identity and work authorization, it specifically prohibits discrimination on the basis of citizenship status. Therefore, a job requirement of U.S. citizenship is unlawful. Furthermore, while adoption of a citizenship requirement is not prohibited under Title VII, having such a requirement could violate the act’s prohibition of race, color or national origin discrimination under a disparate impact theory.

Language requirements

In many localities, requiring employees to be fluent in spoken or written English could have an “adverse impact” on protected groups. In such situations, requiring employees to speak and write English may be unlawful unless the employer can show that fluency in English is job-related and consistent with business necessity. In some cases, the employer must also show that a less restrictive alternative is not acceptable for the job in question. The EEOC takes the position English-only rules applied at all times violate Title VII. Some courts have followed the EEOC guidelines, although others have not.  

The content of an employment application

Employment applications and interviews are the starting point for gathering information about prospective employees. In designing a job application form, employers should strive for questions that will result in securing complete, accurate, and useful information about the applicant and his or her qualifications for the position.

Format

First, the employer should consider whether the question is one that is prohibited by law, such as one that discriminates against or adversely impacts a protected group. Second, the employer should determine whether the information requested is necessary for the hiring decision. An employer should keep in mind it may be required to justify the inquiry at some time in the future. Third, if an employer must ask questions that might be viewed as discriminatory, such as medical questions, it should obtain this data after a conditional offer of employment has been made or after the person has been hired. All medical information, including drug-testing information, should always be kept in a separate file from the employee’s personnel information.

Nondiscrimination statement

Many employment application forms contain language asserting that the employer is an equal employment opportunity employer and does not discriminate. Some employers may be under an affirmative action obligation that requires a statement of nondiscrimination. Because the employment discrimination laws vary from state to state, and because state legislatures frequently enact new laws that prohibit additional categories of discrimination, the employer’s form should be reviewed so that any nondiscrimination statement refers to all prohibited forms of discrimination.

Disabled applicants

When providing a candidate with an employment application, an employer should ensure that applicants with disabilities have an opportunity to fill out the application. This may involve making a reasonable accommodation, such as helping an individual with a visual impairment complete the application form. 

"Active" status

To reduce the likelihood of legal claims when a position is filled long after an application was received from an unsuccessful applicant, it may be beneficial for the application form to include a statement forms are only considered active for a specified period of time, such as 30 days. 

Note: Federal laws may require the employer to retain applications for a specific period of time. Even those applications that are no longer active must be retained for the legally mandated timeframe.

Reference authorization

The application should include authorization to obtain information from all former employers, educational institutions, and other references mentioned on the form. A general indemnification for and release of liability arising out of such inquiries should also be included in the authorization. It is also possible to have applicants sign specific releases for each of their former employers, which may increase the likelihood of obtaining accurate and detailed references.

Dishonesty

The application form should prominently state that misstatements or omissions on the application may result in a failure to hire or in immediate discharge when discovered by the employer. An employer should consider including the following statement in bold letters: “I understand that any misstatements or omissions in this application will result in a decision not to hire me or to discharge me if discovered after I am hired.”

After-acquired evidence of dishonesty on a job application

In a 1995 case, the U.S. Supreme Court held that evidence of employee misconduct discovered after a discriminatory and unlawful discharge is not a complete restriction to recovering damages. The after-acquired evidence must be considered, however, when determining the appropriate remedy for the discriminatory discharge. As a general rule, when an employer belatedly discovers that an employee engaged in misconduct of such severity that the employee could have been lawfully discharged for the misconduct, the employee may only recover back pay from the date of the unlawful discharge to the date the employer discovered the misconduct. Additionally, such an employee is not entitled to reinstatement.

Employment at-will disclaimer

Employers should consider stating in the application that the employment is at-will (in those states that recognize employment at-will) and may be terminated for any reason. The application should also state that any change in the at-will nature of the employment is not valid unless it is in writing and signed by the president or certain other officers of the company. However, complete reliance should not be placed on clauses expressly noting the at-will nature of employment, as some courts have held that such disclaimers can be set aside if there is evidence of supplemental oral and/or written assurances of continued employment.  

Arbitration provision

Employers should also consider including a mandatory employment dispute arbitration provision in the employment application or utilizing a separate arbitration agreement as part of the application process. (Specific requirements in this regard depend upon the jurisdiction at issue. Local, federal and state law should be consulted before attempting to implement mandatory arbitration. Notably, employers such as Facebook and Google recently ended forced arbitration for certain claims.) These agreements increasingly include waivers of the employee's right to a collective or class action. Courts have generally found these waivers to be enforceable. These agreements also may prevent employees from litigating their claims to a jury and reduce the cost of defending lawsuits. Arbitration may, however, increase the number of claims because it is less expensive for the employee than litigation. It may also reduce available procedures to the employer, such as an appeal of an adverse decision.  

Jury waiver provision

Employers who have not been satisfied with arbitration agreements may want to consider implementing a jury waiver agreement as an alternative dispute resolution tool. Used as an alternative dispute resolution tool, the employer requires employees to sign a jury waiver agreement as a condition of employment. The agreement could be included in the employment application. Under a jury waiver agreement, employees retain all substantive and procedural rights to sue their employers, except the right to request a jury. Instead, they agree to have their claims tried before a judge, who is the ultimate decision maker. The judge decides all motions as if the case were ultimately being tried to a jury. All possible remedies remain available to the employee; the only difference is that the risk of one juror running amok and convincing the rest to go along is eliminated if the waiver is enforced. If the judge errs in making a judgment, appeals are subject to full review – just as in jury cases. This is a key difference between decisions under jury waiver agreements and arbitration decisions; the latter are subject to a very limited standard of review. 

A study released in April 2004 by the U.S. Department of Justice strongly supports the premise that employers fare better in cases heard by a judge (bench trials) than in those heard by juries. The study, which analyzed civil trial cases and verdicts in 75 of the country’s largest counties in 2001, found that winning plaintiffs in employment discrimination cases received a median award of $218,000 from juries, but only $40,000 from judges. In addition, jury trials lasted 4.3 days on average, compared to only 1.9 days for bench trials.

Just as important, the time between filing the case and its ultimate disposition was shorter with non-jury cases. During 2001, 78% of bench trials were disposed of within 24 months of filing, compared to only 57% of jury trials. Some courts have enforced jury waivers in employment agreements, but the case law is limited. Employers should consult with legal counsel before implementing a jury waiver, to determine whether such a waiver should be included as part of the application for employment or presented in some other context, such as part of an agreement to mediate workplace disputes at the employer’s cost. Local applicable state federal and state law should also be consulted to determine if such waivers are lawful and/or enforceable.

Class/collective action waiver

Employers may also want to consider including a class/collective action waiver provision in their employment agreements and applications. By signing a class/collective action waiver, an employee agrees not to proceed in a lawsuit as part of a class or collective action. Over the last few years, the number of employment related class/collective action lawsuits has increased significantly, particularly with respect to lawsuits alleging violations of the Fair Labor Standards Act (FLSA). A class action waiver decreases employers' exposure to potentially enormous class/collective action liability and litigation costs.

Abbreviated statute of limitations for employment related claims

Employers may want to consider including a provision that shortens the statutory limitations period for filing employment discrimination lawsuits. 

Note: Some states, like Florida, have enacted laws prohibiting the shortening of statutes of limitation. For instance, Florida law state: “Any provision in a contract fixing the period of time within which an action arising out of the contract may be begun at a time less than that provided by the applicable statute of limitations is void.” Furthermore, in 2019, 12 states extended the statute of limitation for sex abuse lawsuits; and five additional states passed bills, which if approved will do so. Employers should thus check local, federal and state laws for any state in which they have operations to ensure that any contractual shortening of a limitations period is enforceable under state law.  

Inquiries that cause problems

Employers should be cautious about making certain inquiries, such as:

• Maiden name - Inquiring into an applicant’s maiden name may be evidence of sex discrimination. The EEOC has indicated that a permissible variation of this question is: “If you have used another name or names during the past five years, please list those names.”

• Relationship of person to be notified in emergency - If an application form asks an employee to identify the employee’s relationship to “the person to be notified in case of an emergency,” the form should not require the person to be a relative nor ask whether the person is a spouse. This is also a good example of a question that does not need to be asked at the pre-hire stage. It should be included only in the paperwork for a new employee, such as in a post-hire form.

• Age or date of birth - The ADEA prohibits discriminating against persons 40 years of age and older. For this reason, inquiring as to the applicant’s age or date of birth could be used as evidence in a future age discrimination suit. Certain age inquiries may be justifiable due to other considerations, such as compliance with child labor laws. A statement such as, “if you are under age 18, you will need to provide the company with evidence that you are legally able to work” is permissible.

• Citizenship - Discrimination based on national origin or citizenship is unlawful, but proof of identity and work authorization is required by the IRCA for all new employees. Hence, citizenship questions on an application should be omitted. The application should simply note: “All applicants will be required to furnish proof of identity and legal work authorization within three business days of hire.”

• Language fluency - A question regarding an applicant’s fluency in foreign languages may be used as evidence of illegal national origin discrimination, because it might identify the applicant’s national origin. Certain questions regarding language fluency may be justified, however, if language fluency is necessary for the job. For instance, if the employer serves a substantial Spanish speaking population, the employer may be able to show that it needs to hire employees who are capable of communicating with Spanish speaking customers or clients. If foreign language fluency is not necessary for the job position, the employer should request this information only after the person is hired, and it should be kept separate from the files used for promotions and other personnel decisions.

• Place of birth - Another question potentially giving rise to a claim of national origin discrimination is one requesting the applicant to state his/ her place of birth. The employer should avoid asking this question.

• Gender - Because Title VII prohibits sex discrimination in employment, a question regarding an applicant’s gender should not appear on an application form. Again, if needed for recordkeeping, ask for this information only after hire.

• Existence and identification of children/dependents - Questions asking whether the applicant has any children or dependents may be used as evidence of gender or marital status discrimination. Questions or requests such as: “Have you made arrangements to care for children?” “List children and their ages;” and “List family living in local area,” should not be used on an application. A legitimate inquiry as to the applicant’s availability and dependability can be addressed with an alternative inquiry, such as stating the regular hours of work and asking: “Can you work these hours?” Any such questions must be asked of all applicants.

• Marital status - Although federal law does not prohibit discrimination based on marital status, some states forbid marital status discrimination. Should such information be needed, it should be obtained after hire.

• Name and/or occupation of spouse - Objections have been raised regarding inquiries into the name or occupation of an applicant’s spouse, both on marital status grounds and on the grounds that disclosure of this information may identify the applicant’s religion or national origin. This information should be obtained only after hire.

• Homeowner or renter - In some regions, statistics show that a greater percentage of minorities and females do not own homes as compared to white males. Therefore, any preference given to applicants who own their homes might be found to be discriminatory. For residence information, simply ask for the applicant’s current address, prior addresses and length of time at each address.

• Armed forces record - Questions that inquire into the existence, nature, and extent of the applicant’s service in the U.S. Armed Forces may also pose problems. Title VII specifically permits preferences for veterans under federal, state, and local veteran’s preference laws, despite arguments that this type of preference discriminates against females. An employer is most likely not covered by veterans’ preference laws, however, unless it is a federal contractor supplying goods or services in excess of the required statutory amount. If the employer is not subject to a veterans’ preference law, its inquiry into an applicant’s service in the U.S. Armed Forces is unnecessary, unless it pertains to job-related military experience, training, or supervision. Further, questions regarding a “general,” “undesirable,” or “dishonorable” discharge from the U.S. Armed Forces may be similar to questions about arrest and/or conviction records, which pose risks of discrimination claims, as discussed herein.

• Criminal records - As discussed previously, refusing to employ an individual based solely on an arrest or conviction record may constitute unlawful discrimination. Further, certain states may require that an employer not ask about an applicant’s criminal history on the job application. Where such an inquiry on a job application is permitted, the EEOC suggests that the following language appear near the inquiry: “Conviction of a crime will not necessarily be a barrier to employment. Factors such as age at the time of the offense, type of offense, remoteness of the offense in time, and rehabilitation will be taken into account in determining effect on suitability for employment.”

• Surety bond rejection or forfeiture - A policy of rejecting all applicants who have been subject to refusal or forfeiture of a surety bond may also be discriminatory. If this information is reasonably necessary for pre-hire evaluation of employees who need to be bonded, such a question should only be asked of those applicants.

• Availability for weekend, overtime or other work - A question regarding whether the applicant is willing to work Saturdays, Sundays and holidays may improperly inquire into an applicant’s religious beliefs. If such a question must be asked, include a statement advising the applicant that they need not disclose any religious basis for the inability to work these hours and that reasonable efforts will be made to accommodate the needs of employees. The same concern exists as to inquiries about whether an applicant is willing to work overtime.

• Workers' compensation history and/or health characteristics - The ADA prohibits making any medical inquiries about an applicant’s disability before an offer of employment is extended. In light of this fact, federal regulations prohibit inquiries into an applicant’s workers’ compensation history because they might reveal the existence of a disability. Accordingly, no questions regarding workers’ compensation or health or medical information should be included on the application.

• Pregnancy - The Pregnancy Discrimination Act (PDA) prohibits employers from refusing to hire a female applicant because she is pregnant, might become pregnant, or was recently pregnant, unless the BFOQ defense to discrimination applies. Accordingly, no questions regarding a female applicant’s pregnancy status or family plans should be included in the application.

• Religion - Title VII prohibits discrimination in hiring based on religion, among other factors. Employers should check the laws of the state in which they have operations to determine whether questions regarding the applicant’s religion are permissible. As a matter of best practices, employers should avoid questioning an applicant regarding his or her religion. 

• Credit history – Some states, including California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New York, Oregon, Vermont, Washington State and Washington D.C., limit employers’ use of credit information in employment decisions.

• Unemployed status – If an employer considers unemployment status in rejecting applicants, it must do so consistently, without regard to race, color, national origin, religion, sex, disability, age or genetic information. Employers also must not screen out applicants based on unemployed status if it does not help accurately identify responsible and reliable employees. Additionally, employers may have to make exceptions to a policy of rejecting applicants based on unemployed status if the status was caused by a disability. Employers should check the laws of the state in which they have operations to determine whether questions regarding unemployment status are permissible.

• Social Security number – While federal law does not prohibit employers from asking for a Social Security number on employment applications, it is not considered a best practice because of the threat of identity theft and/or other privacy concerns. Further, some states have enacted laws with specific requirements for protecting individuals’ privacy.

• Salary history – With equal pay under the regulatory spotlight, a growing number of states are prohibiting employers from asking job applicants about salary history. Based on the premise that wage discrimination follows the market value of women at hire, this legislation aims to create equal footing at the point of job offer. Maine and Alabama are the most recent states to enact this legislation, joining Hawaii, Delaware, Maryland, Massachusetts, New Jersey, New York, Oregon and Pennsylvania.

State laws should also be consulted to determine whether the applicable state places further restrictions on pre-employment inquiries (see the chart following).

State-specific limits on pre-employment inquiries

Employer comments on forms

Employers should avoid designating areas on the application form as “For Office Use Only” or otherwise inviting stray comments or impressions to the employment application form. Applications are a permanent record of hired employees and such comments could later prove embarrassing or result in a lawsuit. Indeed, an employment application may be subpoenaed from an employer as evidence in an EEOC investigation or discrimination lawsuit. A post-hire form for eliciting information that is only needed after the applicant is hired is recommended.

Retention of applications

Title VII and the ADEA require certain records to be kept for one year from the date of the record (including application) or personnel action involved, whichever is later. Some states require such records to be retained for a longer period of time. Additionally, if a charge of discrimination or a lawsuit is filed, records must be kept through final disposition of the charge or lawsuit.

Working with employment agencies

Employers often use employment agencies to recruit, screen and refer potential employees. Employment and referral agencies are required to abide by the federal anti-discrimination laws, including Title VII, the ADEA and the ADA, as are other entities, such as labor unions and organizations providing training programs.

At the same time, an employer may be liable for the discriminatory conduct of any employment agency that it utilizes to assist in hiring employees. As a result, it is important that employers ensure that the agencies they utilize are aware of and abide by anti-discrimination laws. This same caution should be exercised with regard to search firms.

Use of artificial intelligence in the hiring process

On May 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) issued a “Technical Assistance” (TA) document addressing compliance with ADA requirements and agency policy when using artificial intelligence (AI) and other software to hire and assess employees. The agency also published a short “Tips for Workers” summary of this guidance. Neither of these documents has the force or effect of law, nor are they binding on employers. The guidance is meant to be educational, “so that people with disabilities know their rights and employers can take action to avoid discrimination.” There are several take-aways regarding the Commission’s likely expectations and areas of focus when regulating the use of such tools in hiring or assessing employees:

• Accessibility - Employers should account for the fact that on-line/interactive tools may not be easily accessed or used by those with visual, auditory or other impairment.
• Accommodation - Barring undue hardship, employers should provide alternatives to the use or application of these tools if an individual’s disability renders the use of the tool more difficult or the accuracy of the tool’s assessment less reliable.
• Accommodation, II - Beyond providing reasonable accommodations in accessing/using these tools, employers should ensure that the tools assess an individual in the context of any reasonable accommodation they are likely to be given when performing their job.
• ADA vs. Title VII - The EEOC stresses that disability bias requires different design and testing criteria than does Title VII discrimination, such as access considerations and the potential for inadvertent disability-related inquiries or medical examinations.
• Promising practices - Noting that employers are responsible for ADA-violating outcomes even when a software tool is created or used by a third-party vendor or agent, the Commission provides examples of so-called “Promising Practices” that employers can engage in to demonstrate good-faith efforts to meet ADA requirements.

The TA document uses various illustrative examples of the tools the EEOC aims to regulate. These range from résumé scanners and virtual assistants/chatbots to video-interviewing software and software that tests an individual’s personality, aptitude, skills and “perceived ‘cultural fit.’” Employers using any of these tools in their recruiting, hiring and review of applicants and employees (which, by some estimates, is up to 83% of employers) should take careful note of the EEOC’s position as to where these tools may run afoul of the ADA.

The TA document focuses broadly on three themes, specifically, how the use of algorithmic decision-making may violate the ADA with respect to:

• reasonable accommodation for applicants and employees
• where AI decision-making tools may “screen out” individuals with disabilities
• where an AI-based tool may violate ADA restrictions on disability-related inquiries.

You can access the document online in its entirety at:

• https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence