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EEO: Do you start off on the right foot?

By Faith Driscoll, Esq.

The list of “protected classes” is always growing.  There are now 29 different groups in California.  Think you can name them all?  Don’t cheat!  The list is at the bottom of this discussion.  One area HR practitioners need to focus their attention on is the first step – the job application.  Asking the wrong questions can lead to claims of discrimination that can easily be avoided.

Any felony convictions?  Enforcement guidance issued by the Equal Employment Opportunity Commission (“EEOC”) recommends that the best practice is that employers not ask about convictions on job applications.  It is the EEOC’s position that an employer’s neutral policy of excluding applicants based on certain criminal conduct may have a disparate impact on applicants protected under Title VII.  Under the California Labor Code employers may not inquire about any arrest or detention that did not result in a conviction.  Additionally, certain marijuana-related crimes or possession of certain drug-related paraphernalia should not be requested when the conviction is more than 2 years old.  Because convictions may fall disproportionately among some racial and ethnic groups, the use of conviction information in employment decisions can lead to unintended discrimination under the Fair Employment and Housing Act (“FEHA”), unless the conviction can be linked to the position to justify the decision not to hire or to terminate the employee.

Are you a citizen?  The California Department of Fair Employment and Housing (“DFEH”) has taken the position that only statements or inquiries regarding verification of legal right to work in the United States are permissible under the FEHA.  In light of this, employers should consider eliminating questions regarding citizenship and instead focus on whether the applicant can verify the right to work in the United States.  This can be in the form of a question in the body of the application or a statement at the bottom.  For example, “Are you authorized to work in the United States?” or “Employment subject to verification of eligibility to work in the United States.”

When did you graduate?  Educational information requested in applications may reveal the age of the applicant.  To avoid the potential for an age discrimination claim based on the application, consider removing “From:_______ To:______.”  A better way to find out the length of attendance would be to ask “How many years did you complete:___” along with check boxes for whether the applicant graduated from the institution.  This phrasing, or something similar, is unlikely to elicit information about an applicant’s age.

EEO Statement:  HR practitioners should also contemplate adding an equal employment opportunity statement to applications.  There is no federal or state requirement to include such a statement on application forms, however, including one reaffirms for applicants that the company is aware of and adheres to equal employment opportunity principles.  The language of the EEO statement should reflect the policies of the company and can be developed based on its written EEO policy from its employee handbooks.

Americans with Disabilities Act (“ADA”) Statement:  Employers covered by the ADA have an obligation to make reasonable accommodations to enable an applicant with a disability to apply for a job.  Some applicants with visual or learning disabilities may require an accommodation in order to complete the employment application form.  An accommodation could take the form of a large-print application or allowing an applicant to complete a form at home rather than at the worksite.  The EEOC advises employers to include a statement on the application informing potential candidates that they may request any necessary accommodation to participate in the application process.  The application should include a statement such as “We encourage qualified candidates with disabilities to apply and will make reasonable accommodations to assist in the application process.”

Job applications are also a great place to set the stage for applicant’s expectations.  Including statements of at-will employment, conditions of drug testing and reference verifications and disqualification for false or misleading information will ensure that applicants know what to expect.

One final note before the list of protected classes – retaining records is critical.  Under Title VII, the Age Discrimination in Employment Act (“ADEA”) and the ADA, job applications, resumes, job ads, screening tools/tests, interview notes and other records related to hire/no-hire decisions must be retained for at least one year after creation of the document or the hire/no-hire decision, whichever is later.  Additionally, California employers are required to maintain a copy of all applications for at least two years.  And if an applicant files a complaint under FEHA, the company must retain all relevant records until the matter is fully adjudicated.

So here’s the list:  race; color, national origin (including possessing a driver’s license issued under Vehicle Code § 12801.9), or ancestry; gender/sex, gender identity, transgender, sex stereotyping or gender expression; age; physical or mental disability, perceived disability or perceived potential disability; pregnancy or perceived pregnancy, childbirth, breastfeeding or related medical conditions; religion (including religious dress and grooming practices) or creed; marital status; registered domestic partner status; medical condition (including HIV and AIDS); citizenship; military and veteran status; sexual orientation; genetic characteristics; genetic information (including information from the employee’s genetic tests, family members’ genetic tests, and the manifestation of a disease or disorder in the employee’s family member); and political affiliation. 

How many did you get right?  Does your job application steer clear of these problem  areas?  Share your score and thoughts with SHRM Tulare/Kings in our new Member Forum!  To access the page, log in, then select the Member Forum page from the Members menu.

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