In Focus

July 19, 2002 Advisory

As mentioned earlier in this newsletter, Connecticut has recently passed legislation affecting employment applications. The following provides further guidance regarding employment applications.

1. Is there a general rule of thumb regarding what employers should and should not ask an applicant?

Yes, employers should ask only job-related, nondiscriminatory questions. Generally acceptable areas of inquiry include education and training, and past work experience. The Equal Employment Opportunity Commission (EEOC) has stated that "it is reasonable to assume that all questions on an application form or in a pre-employment interview are for some purpose and that selection or hiring decisions are made on the basis of the answers given. . . . To seek information other than that which is essential to effectively evaluate a person's qualifications for employment is to make oneself vulnerable to charges of discrimination and consequent legal proceedings." As a general rule, then, employers should only ask for information prior to hire that is necessary for making a hiring decision.

2. Are there questions that the law specifically prohibits an employer from asking an applicant?

Yes, the Americans with Disabilities Act ("ADA") places significant restrictions on an employer's ability to make pre-employment inquiries into an applicant's medical history. For example, the EEOC has stated that employers may not ask an applicant to list any conditions or diseases for which he/she has been treated how many days the applicant was absent from work because of illness during the last year, or whether the applicant is taking any prescription drugs. Although Title VII does not prohibit pre-employment inquiries concerning race, color, religion, sex or national origin per se, the EEOC takes the position that any question that may directly or indirectly disclose such information, unless otherwise explained, may constitute evidence of discrimination. For example, the EEOC has said that questions about age and number of children may be used to discriminate against women and should not be asked prior to hire. Employers who need such information for benefit purposes should generally wait to ask about marital status, emergency contacts, number of children, etc. until after hire.

3. Is there anything an employer should be certain to ask and/or include on an employment application?

Yes. A statement on the application that the applicant must sign can help prevent or defend wrongful discharge claims. Such a statement should make clear that if the applicant is hired, his/her employment will be at-will. In addition, it should note that any information on the application found, after hire, to be false or misleading will be grounds for termination. Any other preconditions to hire should also be noted (e.g., ability to provide documentary proof of right to legally work in the United States, satisfactory results of a post-offer, pre-employment physical, etc.).

4. How long must applications be retained?

Personnel records, including job applications and other hiring-related documents, must be kept for one year from the date of making the record or the personnel action involved, whichever is later.