Employment applications can be a great tool for hiring the right applicant. But they can also get you in trouble.
At least one court, has ruled that an employment application that asks medical-related questions can expose an employer to liability under the Americans with Disabilities Act (ADA)–even if the applicant who answers the questions is not disabled!
The applicant in Griffin v. Steeltek Inc. had been asked whether he (1) had ever received workers’ compensation or disability income payments, and (2) had any "physical defects" which would prevent him from performing some jobs.
When he didn’t get the job, he sued the employer, claiming that the questions violated the ADA. The employer argued that since the applicant was not disabled, he had no right to sue under the ADA.
The court disagreed, holding that an applicant who is asked illegal questions may get compensatory and punitive damages, attorney fees and equitable relief (for example, the job he was denied).
Although not all courts agree, the Griffin case points out the risks inherent in the job application process. Asking the wrong question, even if it is asked in good faith, can expose you to legal liability. And the laws have changed so much that questions that were "safe" 10 years ago should no longer be asked.
The questions asked in the Griffin case, for example, were routinely asked prior to the passage of the ADA.
Does this mean you shouldn’t ask applicants to complete an application?
Certainly not. An appropriate employment application serves several valuable functions, not the least of which is to get a good sense of the applicant’s employment history.
In addition, if you are seeking references from the applicant’s previous employers, a signed application containing an appropriate release may encourage former employers to release the desired information.
The release can also serve as a defense to any lawsuit an applicant might bring claiming the organization invaded his or her privacy by conducting the reference checks.
Moreover, a signed application containing a clear employment-at-will statement makes it more difficult for an employee to later bring a breach of contract lawsuit if he or she is terminated.
You can also help prevent or defend wrongful discharge claims by including a statement on the application notifying an applicant that if any information on the application is found, after hire, to be false or misleading, it will be grounds for termination.
In order to protect yourself, you should carefully review your application.
As a general rule, if you seek information from an applicant, it will be assumed that you used the information in making the hiring decision.
For example, asking for the years that an applicant attended high school or college will give you a good indication of the applicant’s age.
To avoid a claim that an applicant was not hired once you found out how old he or she was, do not ask for this (unless, of course, there is a legitimate reason for asking, such as to verify that the applicant graduated from a particular school).
The best rule of thumb: If you don’t need the information prior to hire, don’t ask for it.