You Can’t Ask That: Application and Interview Pitfalls                |       Free Hiring (Interviewing) Policy

Discrimination laws don’t just cover current employees.  Many of the protections extend to job applicants as well.  Find out the 12 topics you should eliminate from your application and interview process, plus the three others that warrant special handling. Get your FREE access to this and 100's of FREE HR resources today.

It’s a fact of the interview process:  You cannot make a decision to hire a candidate without asking a lot of questions.  But, if your questions are not worded properly, or if you ask applicants in “protected classes” potentially sensitive questions, you are setting yourself up for legal trouble. 

The Equal Employment Opportunity Commission (EEOC) and most courts assume that every preemployment question is asked for a purpose, and any answer will then be used to influence hiring decisions.  Thus, the simple act of asking about an applicant’s age or national origin could be used as evidence of discrimination, unless you have a legitimate job-related reason for asking.  Here are the basic “dos” and “don’ts” for collecting information about job applicants. 

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State and federal laws protect job applicants and employees against various forms of discrimination.  At the federal level, there are prohibitions on employment discrimination based on race, color, religion, sex, national origin, pregnancy, age, citizenship status, disability, military status, and union membership.  State and local laws can be even more inclusive, protecting characteristics such as sexual orientation, marital status, and even smoking habits.  If application forms or interviewers ask questions that are not clearly job-related, or that tend to reveal an applicant’s membership in any of these protected classes, you are risking a potential discrimination claim.  You also may be leaving the impression that your organization is unprofessional. 

Therefore, to prevent legal claims and misperceptions, you should make sure all questions are related to an applicant’s ability to perform the job and suitability for the position.  In addition, you should analyze questions for their potential to “screen out” certain groups disproportionately and consider alternative questions, if necessary.  According to the EEOC, a “screening out” question is allowable only if: (1) the information sought is necessary for the safe and efficient operation of the business; (2) the question effectively targets this information; and (3) there is no other less discriminatory way to obtain this information. 

In particular, you should review application forms and interview questions to eliminate questions that indicate:

1.  Race and ethnic origin. Questions about an applicant’s race or ethnic origin should be excluded.  Application forms should not request a photograph or inquire about physical attributes (such as color of eyes and hair).  Do not ask for information about the social organizations or clubs to which the candidate belongs.

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2.  National origin.  Do not try to determine whether a person is from another country by asking applicants to reveal their national origin or citizenship.  However, you may require evidence of eligibility to work in the United States.  Questions regarding the birthplace of an applicant’s spouse or parents should be avoided, as should those about the origin of the applicant’s name.  In addition, you should not request an applicant’s Social Security number at this stage and should wait until after an offer is made (see below).  In addition, unless English-language proficiency is a bona fide job requirement, do not rate a candidate on this skill.

3.  Disability.  The Americans with Disabilities Act (ADA) prohibits all preemployment medical inquiries.  So, don’t ask questions about specific diseases or illnesses, the number of days the applicant was sick in the previous year, workers’ compensation injuries or claims, mental health problems and history, past addiction to drugs or extent of past illegal drug use, and prescription drug use.  However, you may inquire about the candidate’s total number of absences in the previous year, as well as about current use of illegal drugs.  Also, you may ask all applicants about their ability to perform the functions of the job. 

4.  Gender.  Do not ask about a person’s maiden name or gender; marital status; spouse; preference for “Miss,” “Mrs.,” or “Ms.”; pregnancy; family plans; or childcare arrangements.  You can ask if an applicant has ever been known by another name, in order to facilitate accurate background checks. 

5.  Age.  Do not ask about age or date of birth.  You are allowed to verify that the applicant is of legal age to work.  Avoid asking for age-related information such as graduation dates, unless such information is necessary for the job and you intend to verify it. 

6.   Religion.  Do not inquire about religious holidays observed.  You may ask about the ability to work on weekends or holidays, if such availability is job-related.  However, you may have to accommodate applicants whose religious observance conflicts with work schedules, if it is not an unreasonable burden to do so.

7.  Union membership.  Do not attempt to determine an applicant’s current or intended union affiliation. 

8.  Military status.  While you may ask about job-related military experience or training, you should not inquire about a candidate’s military status or type of military discharge.  In addition, you should not inquire about future military commitments (e.g., reserve status) that may require time off from work. 

9.  Arrest or criminal record.  Asking about a candidate’s arrest record is expressly prohibited under many state laws and can expose you to claims of disparate impact based on race.  However, convictions may be asked about if relevant to the job.

10.  Financial status.  Do not ask about a candidate’s financial status (unless job-related), past pay garnishments, or bankruptcy.  You may, however, perform credit checks if you follow the Fair Credit Reporting Act regulations.

11.  Legal off-duty activities.  Do not inquire about smoking, drinking, or other legal activities that the applicant may engage in off-duty.  More than half of the states protect smokers against employment discrimination based on smoking off-duty, and a growing number prohibit discrimination based on any lawful off-duty activity. 

12.  Equal employment opportunity information.  Do not ask about prior equal opportunity claims, sexual orientation, or nonprofessional memberships, since these inquiries may indicate the applicant’s protected class.

As a further precaution, it is also good practice to include an equal employment opportunity statement on your application that states you do not discriminate against applicants based on membership in a protected class.  Some employers go a step further and specifically instruct applicants not to list any organizations or activities that may indicate they belong to a protected class. 

Affirmative Action Requirements and Post-Offer Inquiries

There are three situations where you may ask questions that could elicit information about protected class membership:  (1) to complete an affirmative action plan; (2) to conduct post-offer medical examinations; and (3) to complete necessary paperwork before employment begins.

1.  Affirmative action.  If you are required to maintain an affirmative action plan, you likely will need to compile data on the number of applicants who are females, minorities, disabled, or Vietnam-era or disabled veterans.  Most covered employers solicit this information on a separate sheet, or on a tear-off form, and then keep it in a file separate from the applicant’s general information.  In addition, applicants should be informed that providing this information is voluntary, that the information will not be used in making a decision, and that the data is kept separate from other information about the applicant.

2.  Post-offer medical inquiries.  The ADA allows you, after you make a job offer, to require medical examinations and make medical inquiries before a candidate begins work.  These post-offer examinations and inquiries do not have to be job-related.  However, all similarly situated candidates must be subject to the same requirements, and the ADA limits your ability to revoke a job offer based on any medical information revealed.

3.  Post-offer employment paperwork.  Many questions that are inappropriate at the screening stage become legitimate after an offer is made and need to be answered before employment begins.  Examples of such necessary information include the Social Security number, date of birth, and work eligibility documents which may be needed to verify employment eligibility, process pay, or perform a background check.

Train Interviewers to Prevent Slipups

Clearly, the application and interview screening process can be a legal minefield if not approached carefully.  Even a question that appears to be neutral can reveal an applicant’s protected class or be considered to screen out certain individuals improperly.  For example, asking about the dates of graduation may be used to prove age bias, and questions about arrests or credit history are generally thought to have a disparate impact on minorities. 

Unfortunately, the simple reality is that an improper question can expose you to a discrimination claim.  So, it’s imperative that you carefully review your applications and train all managers to avoid asking improper questions.  Therefore, you should make sure you eliminate the twelve topics discussed above from the hiring process and that all remaining questions relate to the candidate’s ability to perform the job.  Your questions should focus on past experience, relevant education, prior employment, and the job duties of the particular position.  These precautions will help reduce your legal exposure while enhancing the professionalism of your screening process.

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This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.