The function of employment applications is to assemble an initial body of information about applicants and their qualifications for the position in question. Applications routinely solicit information about prior education and job experience. They also often request personal and/or employment references and the applicant's consent to a medical examination or a background check. Applications run into trouble, however, when they ask questions which are personal or have no bearing on job performance. For instance, the questions "Are you currently using illegal drugs?" may be quite clearly job-related, but the question "Have you ever used illegal drugs?" may cross the line of unacceptability and invade privacy.

The main restraints on pre-employment inquiries come from state and federal anti discrimination statutes, chiefly Title VII of the Civil Rights Act of 1964. Sometimes an inquiry itself may be illegal. More commonly, a question is not illegal per se, but, absent other explanations of a negative employment decision, can constitute persuasive evidence that the decision was made with discriminatory intent. In light of fair employment practice laws and court rulings, employers should avoid inquiries about the following:

• Race, sex, religion, national origin, or age, unless required for a valid purpose, such as record keeping, which is made clear in the application
• Marital status, child care duties, intentions as to pregnancy, and birth control
• Height, weight, type of military discharge, and arrest or conviction records, unless it is made clear that the employer does not have a flat rule against hiring persons with such records
• Economic status, including credit information, prior bankruptcy, or garnishments
• Political or religious views or associations
• Personal matters such as sexual preference

Arrest and conviction records

Because an arrest carries no connotation of guilt, employers have found it difficult to defend the disqualification of applicants based on prior arrests. Under Title VII, the blanket rejection of applicants on this ground has been attacked as having a disparate impact on minorities. The use of convictions to justify adverse personnel decisions has had mixed success. Most states regulate the use of arrest or conviction records in making employment decisions. These are two types of statutes: those authorizing or requiring the employer's use of criminal record data, and those limiting or prohibiting the use of such material. While these categories may appear to be mutually excusive, several states have enacted both types of statute.

Statutes forbidding the use of criminal record information are based on a legislative policy to encourage the rehabilitation of people with a criminal past. Some laws apply only to arrest or conviction records, and some apply to both. The rehabilitative aspect of the policy is stronger in the case of criminal convictions, as a greater stigma attaches when the commission of a crime has been proved. The policy, however, is offset by safety concerns prompted by the need for trustworthy and stable employees in certain jobs. Many states have solved this conflict by enacting a general prohibitive statute and then excepting specific occupations.

Fingerprinting

Many states authorize or require the use of fingerprints in the hiring or licensing process for specific occupations. As with criminal record checks, fingerprinting is a common prerequisite to employment in jobs involving a high degree of trust. In contrast to the large number of laws authorizing the pre-employment use of fingerprints, two states, California and New York, limit their use.

The New York law provides that, unless otherwise permitted, no person may be required to be fingerprinted as a condition of employment. The New York legislature, however, has singled out several jobs for which fingerprinting is deemed advisable. The California law does not bar fingerprinting per se; but rather provides that no one may require, as a condition of employment, that a person be photographed or fingerprinted by anyone who desires that the results be given to anyone else if they could be used to the detriment of the individual. This law is virtually the only direct statutory ban on the use of photographs in the hiring process. Requiring an applicant's photograph prior to a hiring decision, however, could be evidence that discrimination in violation of state or federal law has occurred. For this reason, such use is barred by the pre-employment guides in many states.

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