Job Application and Interview Laws

The job application and interview process can be a minefield for both employers and job candidates. Employment laws govern many aspects of recruitment, interviewing, and hiring. These laws forbid employer bias in hiring. They also limit the information employers can gather during hiring. Often, the laws apply to both employees and job applicants.

Asking the wrong questions in the application or interview process could expose a company to legal liability. As a result, understanding the requirements and restrictions for job applications, interviews, and the overall hiring process is crucial for organizations looking to make informed, lawful hiring decisions. 

It's also important for job applicants to know their recruitment process rights. Below, you can find information on the laws surrounding the job selection process.

You can also download FindLaw's Guide to Hiring [pdf] to make sure you know your rights in the hiring process. Check out our Guide to Interviewing [PDF] for a quick, comprehensive guide to the all-important interview process.

Legal Do's and Don'ts

Starting at the interviewing phase, some rights and obligations exist for both parties. By knowing your obligations and the information you are entitled to, you can get the most out of your interview while also avoiding common errors or even legal liability.

DO

• Confirm you have good references available
• Consent to a background check
• Provide proof of your lawful status in the U.S.
• Give consent to routine pre-employment drug screening
• Ask about safety programs and equipment
• Get a job offer in writing including the terms of employment

DON'T

• Lie on your resume or application
• Feel obligated to answer personal questions, such as whether you are married or have children. Don't feel obligated to answer questions about your politics or religion
• Assume you can dress however you want at the interview or after being hired. Companies have the right to impose a reasonable dress code

Legal Rights During the Application Process

Job applicants have legal rights. Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against job applicants and employees who fit certain protected classes. State laws also provide legal protection. Employers can't deprive applicants of work opportunities based on protected class membership.

• These legally protected classes include:
• Race
• Color
• Religion
• Sex or gender
• Marital status
• Pregnancy
• National origin
• Age (40+)
• Disability
• Gender identity
• Sexual orientation
• Drug or alcohol use
• Genetic information

In most instances, employers can't ask questions related to these characteristics during the hiring process. An employer may discriminate if a bona fide occupational qualification (BFOQ) exists. An employer should ask whether the organization can demonstrate a job-related necessity for asking the question. This means that the trait is a valid and necessary job requirement.

Another law that applies to job applicants is the Americans with Disabilities Act (ADA). The ADA requires employers to provide reasonable accommodations to qualified applicants with disabilities during the hiring process unless it causes undue hardship. The law also applies to employees.

A major health insurance provider in Texas paid $75,000 in 2019 to resolve a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC challenged the company's job application process. 

It included an audio assessment exam lasting 35 minutes without captions or other accommodations for deaf or hard-of-hearing applicants. A deaf individual who applied for a claims examiner position was unable to complete the application because their request for a reasonable accommodation was disregarded.

In a separate EEOC settlement the same year, a nationwide grocery chain agreed to pay $75,000 to settle allegations that it failed to provide an interpreter for a deaf job applicant during the hiring process.

The Age Discrimination in Employment Act (ADEA) also applies to job applicants. The federal ADEA protects workers from age discrimination in all phases of employment. This includes job advertisements, interviews, hiring, promotion, and termination. Many state laws also prohibit discrimination because of age and may have stronger legal protections than federal law.

The Genetic Information Nondiscrimination Act (GINA) is a 2008 federal law that prohibits discrimination in employment and health insurance. Under GINA, employers can't discriminate against job applicants or employees based on their family history in connection with any aspect of employment including hiring practices and compensation decisions. 

Employers can't ask questions about your genetic information. Employers can't request or require genetic information from current or potential employees. This includes your family medical history or whether you have taken genetic tests or received genetic counseling. Employees can volunteer the information.

Ban the Box laws also must be considered. The laws prohibit employers from asking about criminal history on initial job applications. Many cities and states have adopted such statutes. The laws are aimed at eliminating the checkbox on the application form that asks whether the applicant has a criminal record. The goal is to give applicants with criminal records a fair chance in the job market.

The laws mean that employers can't ask about criminal convictions until later in the hiring process. In most instances, employers can inquire about criminal convictions only after making a conditional job offer. The offer is often contingent on the results of a criminal background check. If the inquiry reveals a criminal history, employers must allow applicants to explain their criminal record.

One of America's largest retailers reached a $3.7 million settlement in 2018 to resolve claims that its criminal background check policies for job applicants had a discriminatory impact on minorities. The class action lawsuit alleged the company's practices around evaluating criminal histories were too broad and outdated, hindering employment opportunities for African American and Latino candidates.

As part of the settlement, the retailer stated it had eliminated the criminal history question from its initial job applications. Criminal background checks could still occur later in the hiring process. In those instances, the company said, applicants are given a chance to provide explain prior convictions before a final hiring decision is made.

The EEOC has issued guidelines on hiring those with a criminal history in which it warns that the use of an individual's criminal history can, in some instances, violate Title VII of the Civil Rights Act of 1964's prohibition against employment discrimination.

Applicants with arrests but no convictions may want to get the records expunged if charges were dropped. In some instances, convictions can be expunged. A local criminal defense attorney can provide more details.

Illegal Job Interview Questions

While some questions are prohibited by law, hiring managers who lack compliance training may be unaware of these prohibitions and ask unlawful questions. The questions often relate to a legally protected characteristic.

For example, employers can't ask:

• Do you have a disability? They can ask if you can perform the job with reasonable accommodations" by the employer
• What medications are you taking?
• Do you drink or do you use drugs?
• Have you filed any workers' compensation claims?
• What is your family's medical history?

The prohibition on asking certain questions protects applicants from exposing information about themselves that may result in discrimination and doesn't relate to their employment.

You should also be aware that salary history bans are in operation in many cities and states. This means that employers in those areas are violating the law is they ask you about your current or past wages. Most salary history bans forbid employers from asking about or even relying on your past wages unless you volunteer that information. Employers are permitted to ask about your pay expectations for the position.

Both employers and potential future employees should be aware of forbidden interview questions. For employers, an awareness of the questions can help prevent exposure to allegations of discrimination or inadvertent infringements upon the privacy of applicants. Applicants should be aware of forbidden questions so that they can be aware if their civil rights are being violated.

Legal Rights During the Hiring Process

After the interview, hiring managers might order a background check. Employee background screening is a common part of the hiring process. Most employers conduct background checks of potential new hires to verify job qualifications and to protect their companies from making bad hiring decisions. Background checks can't be used to discriminate against job candidates on one of the protected classifications.

Some laws – local, state, and federal – regulate the collection and use of the information and conduct of the organization performing the review. On the federal side, The Fair Credit Reporting Act (FCRA) and equal employment opportunity laws come into play.

The FCRA imposes permission and disclosure requirements for background checks. For example, employers must notify job applicants and employees about the background check. Employers must tell workers that the information might impact employment decisions. 

After that disclosure, the employer must obtain written permission to conduct a background screening through a third party. If the employer is conducting inquiries on its own, such as calling a worker's former employer, then the employer does not have to obtain permission.

States may have additional requirements. Some states, such as California and New York, have their own version of the FCRA.

More

Learn About Job Applications and Interviews

• Getting Hired: Legal Do's and Don'ts: A look at the law surrounding the hiring process and what prospective employees should be aware of when interviewing, such as certain job requirements and working conditions.
• Illegal Job Interview Questions: Some questions may sound harmless, but are prohibited by law. Learn more about how interviews can take a wrong turn and what to do if someone asks you an illegal question.
• Legal Rights During the Hiring Process: Read this to learn more about rights regarding background tests, privacy, and more for prospective employees.
• Pre-Employment Background Checks: Many job applicants are subject to background checks. Learn about private information and the kinds of things your employer will learn about you during the hiring process.

Job Applications and Interviews Articles

• At-Will Employee FAQ
• Background Check Laws: Can Employers Ask for an Applicant's Medical Records?
• Can I Sue for Illegal Interview Questions?
• Employment References That Work For You
• Is a Former Employer's Bad Reference Illegal?
• Lying on a Resume or Job Application
• Part-time, Temporary, and Seasonal Employees
• Tests at Work: Your Rights
• Working From Home: The Telecommuting Issue

You Don't Have To Solve This on Your Own – Get a Lawyer's Help

You have rights during the hiring process. An attorney can provide legal advice that will help you understand your rights and how to proceed if there's been a violation. Visit our attorney directory to find a lawyer near you who can help.