The first legal danger zone you encounter with employees is preemployment inquiries. The questions you ask on application forms and during interviews can create significant legal problems. It’s easy to wander into danger, since many questions you might be tempted to ask run afoul of federal, state, and municipal laws.
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For example, the Americans with Disabilities Act (ADA) expressly prohibits disability-related preemployment inquiries made before extending a job offer to an applicant. The Equal Employment Opportunity Commission (EEOC) cautions that questions concerning an applicant’s age, gender, race, color, religion, or national origin may be used as evidence of discrimination.
Other federal laws include provisions that protect the confidentiality of an applicant’s medical information, prohibit hiring decisions that discourage union membership, and restrict employment decisions based on an employee’s financial history.
Is It Discriminatory?
Generally, preemployment inquiries are considered discriminatory if they satisfy the following two-prong test:
- The inquiry tends to affect members of a protected class differently than it does other applicants; and
- The inquiry is not justified by a bona fide occupational qualification (BFOQ) or business-related job necessity (Griggs v. Duke Power Co., 401 U.S. 424 (1971)).
State Law
In addition to the characteristics protected under federal law, some states and municipalities have laws protecting individuals based on characteristics such as medical condition, military status, genetic predisposition, sickle-cell anemia, credit rating, sexual orientation, gender identity, domestic partnership status, and familial status. Seeking information about any of these protected categories could be considered discriminatory.
Bona Fide Occupational Qualification (BFOQ)
Certain questions violate the law unless a BFOQ exception applies. A BFOQ exception allows an employer to make an employment inquiry only where the inquiry is reasonably necessary to the normal operation of the employer’s business and there is no less intrusive way to ensure that the applicant will be able to perform the essential functions of the job in question. In order to be a BFOQ, a characteristic must be absolutely essential to the applicant’s ability to perform the job. For example, being female would be a legitimate BFOQ for a person applying for a job as a model of women’s clothing. The BFOQ exception applies only in limited circumstances. Employers should always consult with legal counsel before making any inquiries based on a BFOQ.
Questions That May Present Legal Entanglements
Questions about certain topics may present legal problems if asked in an improper manner or at an inappropriate time. Some troublesome topics that recruiters may not be aware of are covered below.
Aliases
To avoid discrimination claims based on national origin, race, creed, and gender, employers must not make inquiries about an applicant’s name that might indicate the applicant’s lineage, ancestry, national origin, descent, or marital status. In order to perform a background check, employers may ask if an applicant has worked or attended school under other names. Some employers wait to ask about other names until after an applicant has been given a conditional offer of employment.
Availability for Weekend or Evening Work
Title VII prohibits employment discrimination based on an applicant’s religion. Therefore, employers must avoid inquiries that would reveal an applicant’s religious beliefs or practices, such as asking if an applicant attends church on Sundays. If an employer has a legitimate business need, it may state the normal work schedule for a job and ask applicants if they are able to comply—as long as the employer specifies that applicants are not required to indicate the need for an absence for religious practices.
Once an applicant has been offered a job, the employer may inquire if the prospective employee will require an accommodation for religious practices.
Persons to Notify in Case of Emergency
Questions should not be asked about the names and addresses of a job applicant’s relatives. Such inquiries may lead to information related to an applicant’s marital status, domestic partnership status, national origin, or other protected characteristics. After an employee is hired, an employer may ask for the name and address of a person to be notified in case of an emergency.
Pregnancy
The federal Pregnancy Discrimination Act prohibits discrimination in employment against pregnant women. Employers should not ask female applicants if they are pregnant.
Gender/Family Status/Family Plans
Title VII prohibits discrimination in employment based on gender, and some states prohibit discrimination based on marital status or familial status. Questions regarding a female employee’s family or family plans may be used as evidence of gender discrimination and should be avoided, as should any inquiry that would reveal an applicant’s marital status or childcare arrangements. While questions about childcare arrangements should not be asked, it is proper to ask about an applicant’s ability to meet required work schedules.
Best practice is to limit inquiries to job functions, such as “This job requires extensive overnight travel. Will it be possible for you to comply with this requirement?”
Domestic Partnership
Many states have enacted statutes that prohibit employment discrimination based on domestic partnership status. Therefore, any inquiry concerning an applicant’s living arrangements should be carefully avoided. Any information garnered from an individual that is related to domestic partnership status should be kept in a confidential file.
Military Service
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits discrimination in hiring or employment against applicants or employees (38 USC Sec. 3801 et seq.). Questions that an employer should not ask are:
- Applicant’s military experience in other than the U.S. armed forces.
- National Guard or reserve units of applicant.
- Draft classification or other eligibility for military service.
- Applicant’s whereabouts in 1941 to 1945, 1950 to 1953, or 1964 to 1973, or other time periods covering military action.
- Any inquiry regarding the type of discharge or any non-job-related inquiry. This protection also extends to witnesses who assist or testify in a USERRA investigation.
- Best Practice: Questions may be asked about education or experience gained in the military that relate to specific job duties.