To read this article in Hebrew click here.
Hiring in the United States is up, and as employers seek to fill openings in their companies, it is important that they do so in a way that is not only efficient, but also in conformity with the web of federal, state and local laws that either directly or indirectly govern the hiring process. Because applicants for employment are generally protected by federal employment laws such as Title VII and the Americans with Disabilities Act (“ADA”) and their state and local equivalents, compliance with these laws is essential to preventing lawsuits by applicants, whose claims are often based on a company’s questionable inquiries during the application process.
Generally, it is assumed that pre-employment requests for information will form the basis for hiring decisions, so the information requested from applicants during the hiring process should be limited to what is necessary to determine if an individual is qualified for the job. While it is obvious that certain categories of information — race, color, sex, national origin, religion, or age — should not be requested outright, as it is unlawful to make hiring decisions based on them and they do not indicate whether an applicant is qualified for a position, other seemingly innocent requests for information could indirectly result in this information being provided and should be avoided as well. Although there may be limited exceptions in circumstances in which an employer is permitted or required by law to make certain inquiries, to minimize the risk of discrimination claims, employers generally should not request that applicants:
- Submit a picture with their applications;
- Provide information regarding organizations and clubs to which they belong;
- State their height and/or weight; or
- Provide their marital status or the name of their spouse or names and ages of their children/dependents.
Other specific areas of inquiry raise their own concerns, and the requirements of law may vary from jurisdiction to jurisdiction:
Employers are prohibited by the ADA from making pre-offer inquiries to applicants when such inquiries are likely to reveal the existence of a disability. Accordingly, employers should refrain from requesting information regarding an applicant’s medical history, current medical conditions, or prior work absences due to illness. Rather, an employer may generally inquire only as to whether an applicant will be able to perform the essential functions of the position with or without an accommodation. Where an applicant has an obvious disability (e.g., the applicant is blind) or voluntarily reveals a disability, and it is reasonable to question whether the disability might pose difficulties for the individual in performing a specific job task, then the employer may ask whether the applicant would need reasonable accommodation to perform that task (e.g., computer screen reader for the blind).
While federal law does not specifically prohibit an employer from conducting a pre-employment credit check on an applicant, the Fair Credit Reporting Act controls the process by which an employer may conduct and use the results of such a credit check, such as what consents are required from an applicant and what steps an employer must take before taking action based on the information learned through a background check. Further, the EEOC has issued guidance cautioning against the use of background checks where such use has the effect, for example, of excluding minorities from employment at a disproportionate rate.
Many state laws, however, are substantially more restrictive than federal law regarding the use of pre-employment credit checks. A growing list of states, including Nevada, California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont, and Washington, have passed laws prohibiting or restricting pre-employment credit checks altogether. Further, even local municipalities are passing anti-credit check laws. Earlier this year, New York City passed its own legislation banning the use of credit checks in most employment decisions. For more information see http://swalegal.com/2015/05/13/new-law-prohibits-new-york-city-employers-from-using-applicant-and-employee-credit-information/. Because of the legal differences across states, counsel should be consulted prior to performing a credit check on any applicant.
Criminal Background Checks
While historically employers have been prohibited from making inquiries regarding an applicant’s arrest record, an increasing number of states and localities are passing laws that also prohibit or substantially limit the use of information regarding an applicant’s criminal convictions during the hiring process. These “ban the box” laws, named for the box on an application that an applicant would be required to check to affirmatively acknowledge a criminal conviction, vary from locality to locality.
By way of example, New York City’s ban-the-box law, which went into effect on October 27, 2015, prohibits most employers from (i) including in any job posting a limitation on employment based on a person’s arrest or criminal conviction, (ii) making any inquiry related to the pending arrest or criminal conviction record of any applicant until the employer has extended a conditional offer of employment to the applicant, and (iii) withdrawing a conditional offer of employment or taking other adverse action against a person because that person has been convicted of one or more criminal offenses or because the employer concludes that the applicant is lacking in “good moral character” because he or she has been convicted of one or more criminal offenses before completing the “Fair Chance Process.”
In New York City, after extending an applicant an offer of employment conditioned on a subsequent criminal background check, an employer may inquire about the applicant’s pending criminal cases or conviction history if before taking any adverse employment action based on such inquiry, the employer (a) provides a written copy of the inquiry to the applicant, (b) performs an analysis of the applicant under statutorily enumerated factors and provides a written copy of such analysis to the applicant, including supporting documents that formed the basis for an adverse action based on the analysis as well as the employer’s reasons for taking any adverse action against the applicant, and (c) after giving the applicant the inquiry and analysis in writing, allows the applicant a reasonable period of time within which to respond, which shall be no less than three business days, and during this time, holds the position open for the applicant. Under the law, an employer cannot deny employment unless it can: (1) draw a direct relationship between the applicant’s criminal record and the prospective job; or (2) show that employing the applicant would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. More information regarding the process for utilizing criminal background checks in New York City can be found at http://www.nyc.gov/html/cchr/downloads/pdf/FCA-InterpretiveGuide.pdf.
Other State Specific Laws
While the above examples reflect some of the most frequently banned areas of inquiry, other state discrimination laws make an employer’s inquiry into other topics equally risky. By way of example only (and multiple states may prohibit the discrimination listed below), generally:
- In Florida, it is unlawful to condition employment on whether an applicant holds or does not hold a Florida concealed weapons permit or to discriminate based on an applicant’s sickle-cell status;
- In Arizona, it is unlawful to discriminate against an individual because s/he is a medical marijuana patient;
- In Kentucky, it is unlawful to discriminate based on tobacco-smoking status;
- In Michigan, it is unlawful to discriminate based on weight; and
- In many states it is generally unlawful to discriminate in employment based on an employee’s lawful off duty activities, such as smoking or gambling during non-working hours.
Given the foregoing restrictions on pre-employment inquiries, employers should exercise caution during the hiring process — both in the written application and the interview phase — to limit inquiries of applicants to those questions that are specifically related to the requirements of the position.