Recognizing that applicants might voluntarily provide information such as race, disability, or labor union organizing activity, some employers are increasingly considering the addition of "nonresponsive information clauses" to their standard employment application. These clauses warn applicants that their applications will be disqualified if any information is provided beyond that which is sought. To varying degrees, nonresponsive information clauses may prove beneficial by helping employers avoid a presumption that they were aware of an applicant's protected status or activity by virtue of the unrequested information.
Potential Risks Posed by Extraneous Information
Civil Rights Cases
Under civil rights laws, an employer cannot reject an applicant for employment on the basis of a protected characteristic such as race, sex, disability, or age. Also, an employer may not refuse to hire an applicant based on prior protected activity such as filing a claim against a previous employer with the Equal Employment Opportunity Commission. Obviously, part of a plaintiff's burden in a case alleging that an employer's failure to hire was motivated by protected status or prior protected activity includes proving that the employer was aware of the status or activity. Where the information was provided on an application for employment, the plaintiff will have at least some evidence that the employer had knowledge. Although the employment application would likely not be dispositive on the issue of knowledge, much less the ultimate issue of whether such knowledge motivated the employer's decision, it is potentially damaging evidence.
Union Organizer Claims
One substantial risk posed by extraneous information on employment applications comes from union organizers attempting to gain access to an employer's facility. An employer cannot refuse to hire someone solely because that person is a volunteer union organizer who has designs on organizing the employees. Further, an employer cannot terminate or discipline an employee for aiding a union organizing campaign. Such organizing activity is specifically protected by the National Labor Relations Act.
A common practice of some union organizers involves indicating their union organizer status on an employment application along with other extraneous, and often non-conspicuous statements. Upon being denied employment, the organizers point to their employment applications and allege that the employer knew of their protected union activity and failed to hire them as a result.
A federal Court of Appeals recently upheld an employer's use of a nonresponsive information policy despite the National Labor Relations Board's holding that the clause was per se illegal because it denied volunteer union organizers the right to tell the prospective employers about their organizing activities. The decision by the Eleventh Circuit in H.B. Zachary Co. v NLRB held that an employer's Nonresponsive Information Policy did not violate employees' rights to communicate their support of a labor union.
The employer in H.B. Zachary included a clause in its employment application advising applicants that providing information other than that requested would result in the disqualification of the application. The Court decided that although employees have a right to communicate their union support to other employees, no such right extends to communications to the employer alone. The Court also decided that the employer's policy was instituted for the valid reason of preventing prospective employees from providing information regarding race, disability and union affiliation that managers might unlawfully consider when assessing an applicant's suitability for a job. The Court also credited the employer's position that the nonresponsive information policy was instituted to ensure that the employer received clear, easy-to-read applications.
The Drawbacks of Nonresponsive Information Policies
Legal Risks
Although the H.B. Zachary decision is persuasive, there is no guarantee that other courts will follow its lead. So, while the benefits of nonresponsive information clauses in civil rights cases are clear, it is too early to tell if other courts will agree with the Eleventh Circuit or choose to follow the National Labor Relations Board.
Employers must also ensure that their nonresponsive information policies are administered consistently and in a nondiscriminatory manner. Employers cannot reject only those applications with extraneous information of protected status or activity. For example, if only those applications indicating "volunteer union organizer" are rejected, while other nonresponsive applications are accepted, the employer would likely be accused of discriminating against union organizers in violation of the National Labor Relations Act.
Practical Business Considerations
Each employer must carefully weigh the potential benefits of a nonresponsive information policy against both the legal risks and institutional considerations. Among the institutional considerations are the additional costs, if any, of policing the applications, the loss of the often useful additional information applicants provide, and the potential disqualification of qualified applicants.
To guard against accusations that a nonresponsive information policy is applied in a discriminatory manner, employers must be diligent in rejecting all applications containing unsolicited information. Doing so requires an immediate review of the applications by personnel trained to look for nonresponsive information.
Also, the nonresponsive information provided on applications is often useful in assessing the candidate. Aside from information about the individual's protected status or activity, some employers encourage an applicant to answer questions freely and to provide whatever information he or she deems relevant to suitability for the position. Such questions, although not consistent with a nonresponsive information policy, often provide the employer with a more complete picture of the applicant.
Finally, a nonresponsive information policy will likely lead to the disqualification of qualified and desirable applicants. There is no reason to believe that highly qualified applicants are less likely to provide extraneous information than less qualified applicants. One way to combat this undesirable result of nonresponsive information policies is to notify disqualified applicants of the rejection of their application and invite them to reapply. Invitations to reapply must also be nondiscriminatory such that all rejected applicants are invited to reapply.
Nonresponsive information clauses are not for every employer. Although there are obvious benefits, such as ensuring that potentially damaging information regarding race, disability and union organizing activities is not even arguably considered in hiring decisions, not all employers are equally exposed to all of these risks. Before implementing such a policy, an employer should carefully assess its risks and balance those against any institutional interests in a more open application process.