THE APPLICATION FORM IN THE SMALL BUSINESS: DESIGN AND LEGAL CONSIDERATIONS
Ted Halatin, Southwest Texas State University John Ross, Southwest Texas State University Bill Middlebrook, Southwest Texas State University ABSTRACT A review of application forms utilized by local small businesses reveal the legality of questions used in the employee selection process. The incidence of improperly worded questions indicates potential problems for small business owners. INTRODUCTION The application form is one of the most commonly used devices in the selection of employees. With this form, (and other information), a business attempts to select the best employee from a group of applicants, hopefully selecting an individual that is qualified to perform the job and will remain with the company for an extended time. Yet, it is also likely that little thought is given to the types of questions asked on the application form, their possible legal consequences, or the value of the information obtained. By now it has been well established, through court precedence and federal and state non-discrimination laws, that certain types of discrimination are against the law. Federal laws barring discrimination include Executive orders (pertaining to federal contractors), Title VII of the 1964 Civil Rights Act, as amended, Age Discrimination in Employment Act, Vocational Rehabilitation Act, and federal agency guidelines (1, pp 24-25). In addition to the federal laws, which are generally limited to employers with 15 or more employees, virtually every state now has Additional laws that in many cases expand the coverage of nondiscrimination. According to the general concepts of the EEOC guidelines, an employer may ask any question on an application form as long as the question relates directly to the job. Therefore, an employer may ask an applicant's sex, for example, if the sex of the applicant is a bona fide occupational qualification (BFOQ) or a business necessity (3). However, inquiries of this type must be documented and validated prior to review by the EEOC or a state agency. Although little research on the legality of questions appearing on application forms has been conducted, two recent studies (4,5) do show the extent of noncompliance by many businesses. Lowell and DeLaach (4) studied application forms from 50 large businesses and reported 17 types of improperly worded questions which appeared one or more times on 48 of the application forms. The five types of questionable inquiries most often indicate, in order, were military background, education (date of graduation), arrest record, physical handicap, and age. In another study Camden and Wallace studied 94 application forms from businesses in Ohio and analyzed them according to the Ohio equal opportunity regulations, which are more restrictive than federal regulations. They found noncompliance in 73% of the application forms studied. The five most common types of questionable inquiries, in order, were marital status, height/weight, dependents, spousal information requested, and military discharge status.
PURPOSE The purpose of this study is to determine the incidence of improper or improperly worded questions appearing on application forms for small businesses in the central Texas area. For this study small business is defined as an organization with 15 or more employees. In the analysis portion the basic federal guidelines were followed. METHODOLOGY Students enrolled in a class in personnel management were requested to gather application forms from small businesses employing more than 15 persons. Approximately 75 application forms were collected from a variety of businesses, in both rural and urban settings. The types of business represented varied considerably and included restaurants; banks, automobile dealers, and small manufactures. Preliminary indicated that some application forms were duplicates (from the same business) and some were from large corporations. The duplicates and large business forms were eliminated from the analysis leaving a total of 53 separate businesses along with their application forms for final analysis. Of these remaining 53 application forms, 27 (50.9%) were of the commercially prepared type which would be bought in a business supply house. This meant that some businesses were using identical forms; however, since we were interested in the incidence of improperly worded application forms these were included in the final analysis. Each application form was then analyzed by the authors to determine if any of the questions on the form might be improperly worded. Questions that requested the applicant to indicate their sex (such as male, female, Mr., Mrs., Miss, spouse's name, etc.) were accumulated under the category Gender. Other categories used in this analysis included: Physical characteristic such as height, weight, eye color, hair color, disabilities, and age. Marital status, spousal information and emergency information (relationship). Inquires about dependents. Residence such as own home, rent, board, etc. Others such as questions about parents, national origin, military discharge and criminal convictions. After all application forms had been analyzed, the number of incidences for each category were totaled and the percentage for each was computed. RESULTS Results of the analyses indicated that of the 53 businesses, 20.7% (11) used application forms that contained no improper questions. The remaining 42 (79.2%) businesses used an application form that contained one or more questions which were improperly worded. The most commonly improperly worded question found concerned the physical characteristic of disability or health (See Table 1). This type of question appeared on 21 (39.6%) of the application forms. The next most frequently asked question was date of birth, followed by date of graduation,
height/weight, marital status, age, gender, dependents, national origin, felony or criminal offense, eye and hair color, residence, spousal information, emergency contact (relationship), parents, and type of discharge. TABLE 1 INCIDENCE OF IMPROPERLY WORDED QUESTIONS+ Frequency Questions that might indicate: Number Gender (sex, Mr., Mrs., Miss., etc.) Physical Characteristics: Height/Weight Eye/Hair Color Disabilities Age: Date of Birth Age Date of Graduation Marital Status: Marital Status Spousal Information Emergency Information (Relationship) Inquires about Dependents Residence Other: Parents National Origin (Citizen of U.S.) Military (Type of Discharge) Felony or Criminal Offense + n = 53 DISCUSSION The results of this study seem to indicate that the small business persons routinely and consistently make preemployment inquiries on the application form that are either illegal or could be used as prima facie evidence of discrimination. Reasons for the use of application forms that contain possible discriminatory questions were not part of this study. However, the typical small business probably lacks the expertise and special interest in this area to make sure they are in compliance with all state and federal regulations. 15
Frequency 28.3%
18 9 21 20 17 18
33.9% 16.9% 39.6% 37.7% 32.0% 33.9%
18 5 4 14 9 4 13 4 13
33.9% 9.4% 7.5% 26.4% 16.9% 7.5% 24.5% 7.5% 24.5%
Additionally some small businesses are using application forms purchased from office supply businesses and assuming that these forms are in compliance. Some of these purchased forms do comply with federal regulation but not state regulations, and some of the forms are out of date and are no longer valid. This reliance on the expertise of others will not shield the small business person from liability, they may result in discriminatory hiring practices. It should also be remembered that many items that should not be asked of the applicant are informational items that the organization is required to submit to EEOC. Therefore, it is important that the company officers determine what items are BFOQ, and then eliminate all the others from the application blank itself. The statistical data items, required by EEOC, should then be placed on a separate form. This separate form should contain the voluntary clause, and then formatted to gain the necessary data to report the EEOC. An example may read something like: The XYZ Company is committed to an Affirmative Action Program, which includes giving full consideration for employment to qualified handicapped individuals, Vietnam era veterans, disabled veterans, ethnic minorities, and women. The following information is being requested of all applicants for employment. Your providing this information is STRICTLY VOLUNTARY. This self-identification request is made in compliance with the regulations issued by the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, as amended. It's purpose is to assist XYZ in monitoring its Affirmative Action Program and to aid in complying with required Governmental record keeping and periodic reporting. This information is not part of the employment application. It will be processed separately and will not be considered in the employment/selection process. If you choose to provide the information, please complete the following: The application addendum sheet may then go on to ask questions concerning sex, age, race, physical condition, veteran status, and other reporting items. Normally, the questions will have pre-printed answers with boxes to check by the appropriate one. This information form may then be passed out with the application blank. When completed, the forms are easily separated, and placed in hold until after either prepared for the report, or the application blank processed for action. Many of the remaining questions on the application form can easily be rewritten to comply with federal and state guidelines. Some of the questions, however, simply need to be eliminated. The following table illustrates how some application form questions might be rewarded. TABLE 2 REWORDING OF UNAPPROPRIATED QUESTIONS + Inappropriate Question More Appropriate Question
Do you have any physical defects? Do you have any physical defects or impediments that might hinder your ability to perform the job for which you have applied? Have you had any recent or past Have you had any recent or past illness or or illness or operations? operations that might hinder your ability to perform the job for which you have applied? What was the date of your latest Are you willing to take a physical exam, at
physical exam? our expense, if the nature of the job requires one? Are you a U.S. citizen? Do you have the legal right to live and work in the U.S.? What is your date of birth? Are you over eighteen and less than seventy? + adapted from Miller, E.C., "An EEO Examination of Employment Applications," Personnel Administration, ol. 25, No. 3 (March 1980) p. 68. REFERENCES (1) Leduinka, James; Federal Regulation of Personnel and Human Resource Management. Boston: Kent Publishing Co., 1982., pp. 24-25. (2) Leduinka, J. and R. Gateweed, "EEO Issues with Preemployment Inquires," Personnel Administrator, Vol. 22, no. 2 (Feb. 1977)., pp. 22-26. (3) Equal Employment Opportunity Compliance Manual, Washington, D.C., The Bureau of National Affairs, Inc. (4) Lowell, R.S. and DeLoach, J.A.; "Equal Employment Opportunity: Are You Overlooking the Application Form," Personnel, Vol. 59, (Aug. 1982), pp. 49-55. (5) Camden, C. and Wallace, B.; "Job Application Forms" A Hazardous Employment Practice," Personnel Administrator; Vol. 28 no. 3 (March 1983), pp. 31-32, 64.