In general, federal prohibitions on employment discrimination also apply to hiring decisions. In other words, just as you cannot terminate an employee because he or she belongs to a protected category, you cannot refuse to hire an applicant on account of his or her protected status. For this reason, employers should avoid asking questions on a job application or in an interview, which are likely to reveal the applicant’s membership in a protected group.
It is also illegal in certain U.S. states (and cities) to ask about an applicant’s criminal history on an employment application. Such laws typically make exceptions for certain positions for which criminal history information may be required by law. The best practice under U.S. law is generally to avoid asking about arrests and/or convictions on the job application and, instead, wait until the employer has made a conditional offer of employment. In the case of a conviction revealed later in the application process, the best practice is to conduct an individualized assessment of the job-relatedness of the conviction to the job to which the candidate applied.
Another consideration in the application process is compliance with the federal Fair Credit Reporting Act (“FCRA”), which governs the collection, assembly and use of information about consumers by consumer reporting agencies, including credit information, criminal background, motor vehicle reports, and other public record information.