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.
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.
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.
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.
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.
you should review application forms and interview questions to
eliminate questions that indicate:
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.
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.
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.
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
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.
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.
Do not attempt to determine an applicant's current or intended union
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.
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.
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.
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.
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.
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
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.
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.
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.
to Prevent Slipups
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.
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.