Preemployment Inquiries: The Good, the Bad, and the Ugly

When a company first meets with a prospective candidate, it’s not just the interviewee who needs to be on his or her toes. Interviewers must be careful to ask the right questions, not just to ensure they’re making the right hire but also to avoid legal entanglements.

Whether they be included on application forms or asked during in-person interviews, preemployment inquiries need to be posed lawfully.
Title VII of the Civil rights Act of 1964 is the primary federal law prohibiting discrimination in employment. Other federal laws, such as the Americans with Disabilities Act (ADA), expressly prohibit certain inquiries made before job offers, and other state and municipal laws may be even more restrictive.
Here are some guidelines to keeping your questions on the right side of that line in the sand.

The Good … Ask Away

Overall, preemployment questioning must focus on obtaining information about the applicant’s ability to perform the essential functions of the job. Inquiries clearly phrased as necessary to determine a candidate’s knowledge, skill, and professional abilities are acceptable. Some permissible areas of inquiry (and some good questions) include:

  • Previous work experience. “Could you tell me a little bit about your work duties in your previous positions and how they have prepared you for this one?”
  • Education and training. “How do you believe your education helped you to develop the skills necessary for this aspect of the position?”
  • Relevant personal characteristics. “What would you say are the top three characteristics or traits you possess that will help you be successful in this job?”
  • Authorization to work in the United States. One caveat to this inquiry—you should pose it in the same way and at the same time to ALL applicants. Inconsistent application (i.e., if the question is asked only of certain candidates based on perceived race or nationality) could be grounds for a discrimination claim.

What Sounds Bad May—Very Rarely—Be Good (Or, at Least, Legal)

Some questions that sound overtly discriminatory can actually be legal if they are framed around a bona fide occupational qualification (BFOQ). But claiming a BFOQ exception isn’t an easy get-out-of-jail-free card; it applies in very limited circumstances. Courts are extremely reluctant to sanction otherwise discriminatory inquiries on BFOQ grounds, and the characteristic the question targets must be absolutely essential to the applicant’s ability to perform the job’s duties.
Some examples of legitimate applications of BFOQ include the following:

  • Being female could be a BFOQ for a job modeling women’s clothing.
  • Filmmakers can hire actors based on age, race, or gender to fit roles as necessary (e.g., being African-American can be a BFOQ in order to portray Martin Luther King Jr. in a movie or TV series).
  • Being able to see is a BFOQ for flying airplanes safely, so airlines may ask preemployment questions to determine that an applicant for a pilot position is not blind.

Employers should be cautious and always consult with legal counsel before making any preemployment inquires based on a BFOQ.

The Bad … It Can Sneak Up on You

Plaintiffs’ lawyers (and the courts) will usually take the position that EVERY question you asked during the preemployment phase was directed with the goal of determining a candidate’s eligibility. Even if you think you’re just making friendly small talk, be mindful of what you ask! When you said “That’s an interesting accent. Where are you from?” you may not have made a note of the answer or even meant anything by it … but if that applicant isn’t hired, you could be staring down the barrel of a discrimination claim.
That said, here are a few lesser-known inquiry areas to be wary of:

  • Aliases. These may reveal the applicant’s lineage, ancestry, national origin, or marital status. While aliases may be necessary for a background check, it may be wise to wait to ask until after a conditional employment offer.
  • Education. Wait, wasn’t this on the “good” side of things? Yes, but there’s a flip side to this coin. For example, if it’s clearly stated in the job description/posting that a high school diploma is required, you shouldn’t be asking applicants if they have a college degree. This can (and has) been perceived as adversely affecting qualified minority candidates.
  • Availability for weekend/evening work. This may be a legitimate business need, but frame an inquiry wisely—perhaps present a “normal work schedule” and ask if the applicant can comply. Singling out weekends and evenings specifically, however, could be construed as discrimination on the basis of a candidate’s religion under Title VII of the Civil Rights Act of 1964.
  • Arrests and convictions. While checking on a prospect’s criminal history used to be standard procedure, many states have enacted “ban the box” laws prohibiting employers from making such inquiries of any applicant. Check your applicable state and local ordinances.

In tomorrow’s Advisor, we take a look at the ugly questions you should avoid at all cost.

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