Employment Application Design: Do's and Don'ts

An organization’s employment application can sometimes help or hinder the hiring process. Well-meaning questions can come off as discriminatory.  Weakly designed applications won’t give you the proper amount of information to make an effective decision on whether or not to interview a candidate. In this issue of Astronology®, we discuss the factors surrounding employment application design.

              A major concern most organizations will have when designing their employment applications is ensuring they are not violating any laws.  What type of questions should employers avoid? An innocent mistake such as including a date of birth or date of high school graduation section could spell trouble, for instance. The Age Discrimination in Employment Act protects employees ages 40 and over.  As a result, requesting a date of birth or graduation can make it appear that a candidate could be rejected due to his / her age.  An exception in this circumstance may be if the applicant is under the age of 18. Some other laws to consider when selecting the type of questions to include on your organization’s employment application are the following:

• Equal Employment Opportunity Commission (EEOC) guidelines: Encompasses questions involving identifying an applicant’s age, race, national origin, sex, physical characteristics, religion, and other related personal information such as arrests and convictions.
• Americans with Disabilities Act (ADA): Encompasses questions involving an applicant’s health history and / or handicaps (if any exist).
• Immigration Reform and Control Act: Encompasses questions involving an applicant’s citizenship. Remember, the Form I-9 will assist in balancing an employer’s compliance in establishing a worker’s eligibility to accept employment in the United States.
• State Violations: Certain states have strict laws pertaining to employer rights to information about an applicant’s past salary history, credit, sexual orientation, and even access to transportation. Make sure you are aware of your state’s laws.

               By avoiding the personal questions, how do we get to know the applicant? While organizations are looking for the best fit, the core questions / sections to include are

·       Contact information

·       Position the applicant is seeking

·       Hours of availability

·       Expected salary

·       Past experience

·       Education

·       Additional detailed information such as an applicant’s experience with a specific tool, software, or equipment, willingness to travel, willingness to perform specific tasks, and even examples of when the applicant worked with a team (if related to position)

·       Closing statements

               In particular, the closing statements can include information to help organizations avoid finding themselves involved in lawsuits without being given notice. Such statements mentioned in an INC.com online article are the following:

·       Statements related to equal employment opportunities practices

·       Consequences for including information not requested on the application

·       Instructions for disabled applicants to ensure compliance with the Americans with Disabilities Act

·       Notices regarding the length of time the information will be kept on file

·       Requests that applicants certify the accuracy of the information

               As the Astron Solutions team is not legal professionals, consulting with employment law professionals is extremely advisable, to ensure no possible legal violations are incurred through your organization’s employment application. Are there any special questions your organization uses on your employment application? Share with Astronology®!

How Far Does Your Organization Need to Go to Accommodate Pregnant Worker?

In 2006, Peggy Young worked for UPS as a pickup and delivery worker while she was pregnant. Her doctor restricted her from lifting items heavier than 20 pounds during her first 20 weeks of pregnancy, and items heavier than 10 pounds during the remainder of her pregnancy.  UPS placed Young on leave without pay because, as a pickup and delivery driver, the company required her to be able pick up parcels weighing up to 70 pounds. In this article of Astronology® we discuss the Young v. UPS Supreme Court decision and what it means for organizations in the future.

Some Background Information

Although UPS has a light duty program, Peggy did not qualify because the program is only for employees in the following circumstances:

• Those with limitations resulting from work-related injuries
• Those covered under the Americans with Disabilities Act (ADA)
•  Those who had lost their Department of Transportation Certification 

Peggy applied for light duty.  Because she did not fit the three criteria, she was denied access to the program.  Eventually, she had to take unpaid leave that resulted in her losing her medical benefits. Young sued UPS based on what she felt was pregnancy discrimination. UPS argued that its policy did not discriminate due to her pregnancy and is based on workers’ compensation status.

Supreme Court Decision

The Courts rejected both parties’ arguments, noting that if a light-duty job / program is available, an employer does not have to offer it to pregnant employees. It also ruled that UPS’ workers’ compensation-based defense was faulty. The Supreme Court gave a three step approach:

• An employee can dispute that a light duty program appears to ignore pregnant employees.
• The employer can justify its exclusions if based on a “legitimate, nondiscriminatory reason.”
• The employee can contest the employer’s reasoning.  If sufficient evidence displays that the employer’s policy imposes a “significant burden” on a pregnant worker and the employer’s reasons are not strong enough to justify the employee’s burden, the employee’s claim can reach a jury.

This test leaves a lot of things open to discussion. How strong enough must the employer’s reasoning be? How do you determine what a “significant burden” is?  What is “significant” for a pregnant employee? As an organization what do you do to ensure that you are in compliance? Entrepreneur’s online website explains:

1. If you have a light duty program that excludes pregnant employees, assume it may be challenged, and if so, that the case likely will end up before a jury. The odds of winning are not good.
2. If you don’t have a light duty program, you don’t have to create one. That is, you do not have to give pregnancy a preference. Indeed, an employer that has a light duty program could conclude that, based on the Court’s decision, the program may not serve its intended purpose, and constrict or abolish it.
3. Even if an employer does not offer light duty, the organization cannot treat employees with disabilities associated with pregnancy or childbirth less favorably than those with other disabilities that similarly hinder the ability to work.  Employers should also note that the definition of disability was expanded significantly under the amended ADA, so that even temporary conditions may constitute a disability if they severely impact a major life activity. Therefore, most medical limitations associated with pregnancy or childbirth likely will be disabilities that must be accommodated. This does not necessarily mean light duty. An employer generally does not have to eliminate essential functions, only accommodate to a reasonable extent how they are achieved.
4. Employers should have a reasonable accommodation policy that makes clear that coverage of physical and mental conditions includes those associated with pregnancy or childbirth. In some states and local jurisdictions, such as New Jersey and New York City, employers may have to accommodate pregnant employees even if they are not disabled. Employers in those jurisdictions will need to make that accommodation clear as well. 

Another thing to keep in mind is what laws your state may have in regards to pregnancy discrimination. At least 12 states have enacted laws that treat pregnancy like a disability which requires employers to provide reasonable accommodations to pregnant employees. How far an organization must go to reasonably accommodate an employee can be different state to state. Astronology® readers, how has the Young v. UPS ruling affected your organization’s policies? Share your thoughts with us!