Intent Key to Requesting Job Applicants’ Credentials

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Minnesota law states that an employer cannot ask a job applicant “to furnish information that pertains to … age” unless a bonafide occupational qualification applies. Minn. Stat. § 363A.08, subd. 4(a)(1). Does this mean that asking for dates of education is prohibited because it “pertains to age?” The answer depends on whether the question is supported by a legitimate reason.

Although Minnesota law is fairly clear on prohibiting questions pertaining to age, the federal law on this issue is less specific. The Age Discrimination in Employment Act (ADEA) states that it is unlawful for an employer to refuse to hire or discriminate against a person because of the applicant’s age. 29 U.S.C. § 623. However, the Code of Federal Regulations explains that asking for dates of birth is not “in itself ” a violation of the ADEA. 29 C.F.R. § 1625.5. The ADEA explains that such questions “may tend to deter older applicants or otherwise indicate discrimination,” so applications containing such questions should include reference to the ADEA and explain that the purpose for the question is not prohibited. Id.

However, asking for a job applicant’s age directly is much different than asking for dates of education.

A federal case decided in the Northern District of Illinois analyzed an employer’s request to applicants to disclose their high school attendance and graduation dates, but applied only the language of the ADEA. In Cady v. Miss Paige LTD, 2004 WL 1144044 (N.D. Ill., April 30, 2004), the court found that since federal law does not prohibit asking age or date of birth on applications, a plaintiff “cannot maintain a cause of action for a per se violation of the ADEA simply because [employer] requires job applicants to disclose their high school attendance dates and/or graduation dates on an employment application.” Id., at 5. Since requesting dates of birth is not a violation, “there is even less of a basis for asserting that a policy requiring the disclosure of high school attendance dates and/or graduation date violates the ADEA.” Id.

Finding no per se violation, the court in Cady went on to look at the employee’s claims of age discrimination under the familiar McDonnell Douglas test. The Cady court ultimately found that, although the plaintiff could not establish a prima facie case of age discrimination, it would not have mattered because the defendant had a legitimate, non-discriminatory reason for requiring applicants to include their high school attendance dates and/or graduation dates on the application. Id., at 7. The reason why the question was legitimate in Cady was because the employer “pledged to its clientemployers … that it will verify an applicant’s educational history” and “having applicants disclose their high school attendance dates facilitate the verification process.”

A federal district court in New York analyzed an online application that asked applicants to provide the “[y]ear you started working professionally.” Smiarowski v. Phillip Morris USA Inc., 2005 WL 1575002 (S.D.N.Y. July 5, 2005). This application also contained an area where an applicant “could enter educational information, including year of graduation.” Id., at 4. Like the court in Cady, the court held that “[t]he breadth and depth of an applicant’s experience is a lawful area of inquiry.” Id., at 5.

The Smiarowski court also highlighted the interesting proposition that just because someone may have entered the professional workforce on a certain date does not necessarily indicate the applicant’s age because “a person over age 40 and a person in his or her twenties each may have entered the professional workforce in 2001.” Id. The same argument could be made in relation to questions about an applicant’s education dates, especially in today’s environment, where people routinely complete their high school education and/or higher education much later in life.

The thrust of the above cases is that, without evidence of an actual discriminatory intent behind such questions, there cannot be an inference of discrimination. Asking for applicant’s credentials and supporting dates is not evidence of discrimination unless pretext can be proven.

Courts in other jurisdictions have rendered similar holdings. See Nieman v Grange Mut Ins Co., 2013 WL 1332198, at *12 (C.D. Ill April 2, 2013) (“basis for asking a candidate’s college graduation date is reasonable and has a business justification . . . ”) However, the more prohibitive language of the Minnesota Human Rights Act has still not been interpreted by a court with regard to application or interview questions that ask for an applicant’s education dates.

It is wise for employers to only ask applicants questions that have a legitimate business purpose. If questions asking for an applicant’s dates of education are asked, the employer would be well served by explaining that the purpose behind the question is simply to verify credentials, much like the ADEA suggests. Tom Priebe 

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