Employers can be held liable for discrimination against people whom they never even hired. Discrimination against job applicants in protected classes is as illegal as discrimination against employees.
Sometimes, employment applications ask for information that businesses could use to "weed out" people they don't want. A business may not intentionally be discriminating against people based on their age, race, disability or other protected characteristic. However, regardless of their intention, employment application questions can be a liability hazard.
Among the questions to avoid on applications are those related to:
- Medical conditions
- Disability (including asking if someone needs reasonable accommodations)
- Age (including graduation dates)
- Marital or parental status
- Citizenship status (Applicants can only be asked if they're legally allowed to work in the U.S.)
Businesses should not ask that photos be submitted with applications or resumes, either. This can lead to accusations of bias based on race, ethnicity or other traits not relevant to the job.
Businesses can also minimize their chances of facing discrimination suits by including certain disclaimers on their applications and recruiting and hiring materials. These include:
- A nondiscrimination statement
- An at-will disclaimer
- A background check acknowledgment
It's wise to have an experienced attorney review your applications and all materials aimed at applicants and potential applicants. They can spot any issues and help you find possible alternatives, if needed. For example, if you're hiring a bartender or server for your restaurant, you need to be sure that they're at least the age required by state law to serve alcohol. However, you don't need to know (at least on the application) precisely how old they are.
By getting sound legal guidance upfront, you can save your business considerable money, time and damage to your reputation.