Labor and Employment

Know What Questions Can and Can't Be Asked

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When designing application forms or interview questions for job applicants, you need to be cautious about the types of questions that should be asked. As a general rule, the questions themselves will not violate federal or state anti-discrimination law, but if you disqualify any applicants because of their answers to those questions, you may find yourself facing a lawsuit.

Protected Class Status

Employers should not make any pre-employment inquiry that will provide information from a job applicant that:

  • Identifies the person as having protected class characteristics, namely age, sex, race, color, national origin, religion and disability
  • Does not have any relationship to successful job performance

The only reason you should have for asking about an applicant's protected class characteristics is to fulfill EEO reporting requirements or where you can prove that a protected characteristic is a bona fide occupational qualification (BFOQ) for the position being filled; for example, screening only women for a female part in a play.

Other Questionable Inquiries

Other pre-employment inquiries that should not appear on the application or should not be asked during the employment interview include:

  • Date-of-birth questions, which may be construed as age discrimination
  • Citizenship, place of birth, alienage or ancestry questions, which may be construed as national origin discrimination
  • Marital status, pregnancy, number of children, child-bearing or child care questions, which may constitute gender-based discrimination
  • Arrest record inquiries may be prohibited by law
  • Conviction record inquiries, although allowed, should be used with extreme caution because you can use the information only if it is job-related
  • Financial status questions may have a disproportionate impact on minority groups, so make sure their use is job-related
  • Height and weight inquiries should never be asked during the pre-employment screening process. However, the information can be obtained after an offer of employment is made
  • Physical and mental condition or handicap and disability questions should not be asked during the pre-employment process because they may constitute disability discrimination
  • Questions about organizational memberships, charitable activities, hobbies or personal interests should not be asked because they may indirectly disclose a protected class characteristic
  • Questions about physical descriptions or asking applicants to submit photographs are obviously not a good idea
  • Questions about holiday or weekend availability are inappropriate unless you are looking to cover work shifts during those time periods
  • Type of military discharge and job referral questions should be avoided

Permitted Questions

Often, there are other ways to obtain information that may appear to be discriminatory but is relevant to the position. Some examples include:

  • Ask if the applicant is 18 years of age if the position must be performed by someone of minimum legal age
  • Ask applicants if they are authorized to work in the United States
  • On the application, list the essential functions of the job and ask applicants if they can perform the essential functions without or without reasonable accommodations
  • Ask applicants questions about their education, skills and work experience only if they relate to the successful performance of the job for which you are hiring
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