1.3 GUIDELINES FOR THE APPLICATION PROCESS
1.301 Employment Applications and Interview Questions.
A. In General. An employment application form should be kept as short as possible, and questions should be limited to those that will elicit
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information to be used in making the hiring decision. The EEOC and state agencies generally assume that the employer considers all information elicited on the employment application. Thus, unless an employer does, in fact, require the information to make a hiring decision, it should not be sought.
If the employee is a "government contractor" under Executive Order No. 11246, 9 numerous other restrictions and affirmative obligations are imposed on the pre-employment procedures.
B. Specific Topics to Avoid. EEOC guidelines list categories of employment application questions that are not specifically prohibited but that could lead to a claim of disparate impact discrimination. The following topics should be avoided during job interviews, because employers generally are not permitted to base hiring decisions on these criteria.
1. Age or Date of Birth. Questions about age or date of birth are suspect because federal law prohibits discrimination against persons over the age of 40. District of Columbia and Maryland law prohibits discrimination on account of age against persons of any age group. The employer can, however, ask applicants who the employer has reason to believe are too young to be employed whether they are at least 18.
2. Marital Status. "Check one C Mr., Mrs., or Miss; Spouse's Name; Spouse's Work; Widowed, Divorced, Separated." All of these questions relate to an applicant's marital status and, because such a criterion is almost universally irrelevant to a hiring decision, should not be asked. The Virginia Human Rights Act 10 and most county or local antidiscrimination statutes, including the human rights ordinances of Fairfax County, Arlington County, and Alexandria, prohibit discrimination on the basis of marital status.
3. Sex. Except insofar as sex may be a bona fide occupational qualification, such as for fitting clothes or acting in a play, it has been ruled irrelevant to a lawful hiring decision.
4. Parenthood. The EEOC has stated in the past that questions regarding the existence of children should not be asked because they are frequently used to discriminate against women. Moreover, an employer may not base a hiring decision on the fact that an applicant does or does not have children.
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5. Citizenship. Federal law prohibits discrimination against aliens who lawfully seek employment unless citizenship is a job requirement, such as where a security clearance is required. The employer may ask, "Are you legally permitted to work in the United States?"
All employment application forms used by private employers operating in Virginia "shall ask prospective employees if they are legally eligible for employment in the United States." 11 Furthermore, it is a Class 1 misdemeanor for any employer to knowingly employ or continue to employ any alien who cannot provide documents indicating that he or she is legally eligible for employment in the United States. 12
6. Religion. Employers may not discriminate against applicants based on religion and may, in some circumstances, be required to accommodate certain religious practices. Employers should not ask potential employees questions about their religious beliefs or practices, such as whether they go to church or where they worship. The prohibition against discrimination based on religion does not preclude employers who require work to be performed on weekends to ask applicants whether they are available to work on Saturdays or Sundays.
Although Virginia law formerly protected an employee's right to a day of rest on Sunday or, for certain observers, Saturday, the law was repealed on July 1, 2005. 13 This statute was referred to as the "day of rest" law, and it required employers to give employees at least 24 consecutive hours of time off each week. 14
7. Economic Status; Prior Bankruptcy. Unless information that indicates economic status is somehow necessary to evaluate whether an applicant can perform a job, those questions should be avoided. The applicant should not be asked about rental or ownership of a home, past garnishment of wages, or any charge accounts. The EEOC has expressed the view that inquiries into those areas may elicit "suspect" information.
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United States bankruptcy law specifically prohibits discrimination in employment solely because an individual has obtained protection under the bankruptcy laws or has been associated with someone who has obtained that protection. 15
8. Prior Arrests. The Ninth Circuit Court of Appeals and the EEOC have taken the position that employers who ask about arrest records may be engaging in disparate impact discrimination because certain minority groups have been subjected to arrests on a disproportionate basis. 16 Many courts, however, have been hesitant to accept this theory, 17 and the proposition has never been adopted by the federal or state courts in Virginia. Virginia law only prohibits employers from requiring an applicant for employment to disclose information regarding any arrest or criminal charge that has been expunged. 18 Thus, as a general rule, while employers should exercise caution in making inquiries regarding prior arrests and should have a reasonable justification for doing so, there is no state or federal law specifically prohibiting these inquiries.
On April 25, 2012, the EEOC released Enforcement Guidance (the "Conviction Guidelines") on the use of arrest or conviction records in employment decisions. The Conviction Guidelines are advisory only and not legally binding. 19
According to the Conviction Guidelines, an arrest does not by itself establish the existence of criminal conduct. Therefore, the EEOC takes the position that an employer may not exclude an individual on the basis of an arrest alone without determining that the conduct underlying the arrest implicates job-relatedness and business necessity, as such an exclusion by itself is neither job-related nor a business necessity. 20 However, according to the EEOC, if the conduct underlying the arrest makes an individual unfit for a position, the employer may make an employment decision based on the underlying conduct. For example, a school terminates an assistant principal belonging to a protected group who was arrested on the basis of accusations by several young girls that
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he had touched them inappropriately. Because the alleged conduct itself is a violation of school policy, the employer did not engage in a discriminatory action where the policy is linked to conduct relevant to the job and the termination is based on descriptions of the underlying conduct and not the arrest itself. 21
9. Conviction Record. As with arrest record inquiries, an employer who asks about an applicant's conviction record should consider whether the convictions are "job-related" or indicate an applicant's unfitness for a particular job. The EEOC may challenge such questions as having a disparate impact on applicants from certain minority groups and may require that the employer demonstrate the "job relatedness" of the conviction. In many states a disclaimer is required, and employers are encouraged to include the following language when seeking information regarding prior convictions: "A conviction will not necessarily automatically disqualify you from employment."
Since having a criminal record does not entitle an applicant to title VII protection, employer reliance on criminal records only violates the statute if it is part of a claim alleging that the employer's practice imposes a disparate impact on a protected class based on race, color, religion, sex, or national origin. An employer faces liability for using criminal records under title VII if the practice disproportionately affects a protected group and the employer fails to show that the practice or policy is a job-related business necessity. 22
Under the Conviction Guidelines mentioned above, a record of a conviction usually provides sufficient evidence to show that an individual engaged in criminal conduct. However, because criminal records are often incomplete or may contain errors, and convictions may be expunged, the EEOC warns against basing employment decisions solely on convictions. 23
As a best practice, the EEOC recommends that employers not ask job applicants about convictions on applications. 24 However, this recommendation fails to comport with the realities faced by employers today, particularly when hiring for positions that are customer-facing or deal with the public. According to the EEOC, if the employer does ask about convictions, questions should be limited to convictions for conduct related to the position and consistent with business necessity. In order to demonstrate that a criminal conviction exclusion is job-related and consistent with business necessity, the employer
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must establish a link between the specific criminal conduct and the risks associated with the particular position.
The Conviction Guidelines list two ways that an employer may be able to consistently meet the job relatedness and business necessity defense. 25 First, the employer may validate its criminal conduct "screen" through the Uniform Guidelines on Employee Selection Procedures (the "Uniform Guidelines"). To use the Uniform Guidelines, the employer must have data that links the criminal conduct to related work performance or subsequent behaviors. However, studies linking convictions to subsequent work performance are rare, and the Uniform Guidelines "recognize that '[t]here are circumstances in which a user cannot or need not utilize' formal validation techniques and that in such circumstances an employer 'should utilize selection procedures which are as job related as possible and which will minimize or...
