The unfortunate truth is that the moment your candidate comes in for an interview, you are already at risk of making an illegal and costly blunder. Preemployment inquiries are regulated by a series of employment laws; despite this, a number of illegal questions are asked every year.
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For example, the Americans with Disabilities Act expressly prohibits disability-related preemployment inquiries made prior to extending a job offer to an applicant. The Equal Employment Opportunity Commission cautions employers 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, all states and municipalities have laws protecting individuals on the basis of characteristics such as medical condition, military status, genetic predisposition, credit rating, sexual orientation, gender identity, domestic partnership status, and familial status. Seeking information about any of these protected categories could be considered discriminatory.
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 on the basis of 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 should 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 should 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 may 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.
In tomorrow’s Advisor, more rookie blunders, plus an introduction to BLR’s research report, Recruiting Best Practices for 2016: New Research and Insights.