PRE-EMPLOYMENT INQUIRIES: WHAT QUESTIONS CAN EMPLOYERS ASK DURING THE INTERVIEW PROCESS?
I. Introduction
With the ever-increasing number of lawsuits in the employment arena, employers need to educate themselves on how to reduce their potential liability for employment lawsuits. This article provides employers with a general overview of the types of questions they can and cannot ask during the interview process.
II. Pre-Employment Inquiries
Generally, employers must not seek information related to protected classes, such as race/color, creed, religion, citizenship/national origin, marital status, status with regard to public assistance, organizational memberships/activities, disability, sexual orientation, sex and age. If the employer cannot show that the information it is seeking is necessary to meet a bona fide occupational qualification, the inquiry should not be made. The selection criteria for an interviewee should be job related and consistent with business necessity, and must not unduly exclude members of protected classes.
The general areas of inquiry made by an employer during the application and interview process are specifically addressed below. This article is written for educational purposes only and is not intended to be legal advice. The below topics are general considerations and are no way exhaustive of the pre-employment inquiries an employer can and cannot make.
- Sex of the Applicant: Inquiries as to "male" or "female" are allowable provided that the inquiry is made in good faith for a nondiscriminatory purpose. It is very rare that sex is a bona fide occupational qualification of a job. One example may be a female attendant in a woman's' bathroom. If sex is not a bona fide occupational qualification, an employer should not inquire into the sex of the applicant.
- Marital Status: An employer should not ask any questions regarding the marital status of the applicant. Nor should an employer ask questions regarding the applicant's spouse, spouse's application, political affiliation, criminal record, etc. Questions as to whether the applicant intends to marry or is married should also not be asked. However, an employer can ask information concerning who the employer should contact in case of an emergency, but this information should be obtained after an offer has been made and accepted.
- Names: An employer may ask if other names have been used in the past so that the employer can check references. However an employer should not draw any inferences regarding the name changes, i.e. marital status.
- Educational Requirements: Because educational requirements may exclude members of minority groups, it is important that educational requirements are necessary and job related. If a job can be satisfactorily performed by someone without a special degree, a special degree should not be a job requirement. It is also important to avoid dates of schooling or graduation. These type of questions intrude upon the applicant's age. An employer should ask a general question such as "describe your education" and not ask questions such as "what year did you graduate?"
- Work History: An employer should also avoid dates of employment. The best way for an employer to inquire into this topic is to ask a general open-ended question such as "tell me about your work history" or "what experience do you have that qualifies you for this job?"
- Age: The Age Discrimination and Employment Act (ADEA) prohibits employers from discriminating on the basis of an individual's age. This prohibition is limited to individuals who are at least 40 years of age. Refusal to hire an individual based on the age of an individual is, in most cases, unlawful. However, it is not unlawful, and is sometimes required, for an employer to make a pre-employment inquiry as to the applicant's age where age is a bona fide occupational qualification. An employer may also ask if the applicant is at least 18 years of age.
- Credit History: Employers may use credit checks as an investigative tool in the hiring process. The Fair Consumer Credit Protection Act requires an employer to notify the applicant of the agency's name and address if a credit report is used to deny employment. The use of credit references can have a disparate impact on persons in protected classes and therefore, employers are cautioned to use them only when the nature of the job warrants it. For example, courts have found that banks and financial institutions have a legitimate business reason for inquiring into the credit history and financial status of the applicant.
- Criminal History: An employer can inquire about convictions, but can not inquire about arrests. Criminal convictions may be considered, but cannot be an absolute bar to employment. There must be some relationship between the nature of the crime and the ability to perform the job before a conviction can be a reason for not offering employment.
- Physical Requirements: Physical requirements must be related to the job. The employer should accurately communicate the physical requirements to the applicant and allow the applicant to judge whether they can meet those requirements. An employer should not enforce height and weight requirements, unless such requirements are a bona fide occupational qualification. Unnecessary physical requirements may exclude qualified disabled candidates. The Americans with Disabilities Act (ADA) prohibits an employer from inquiring as to whether the applicant is an individual with a disability or as to the nature or severity of such disability. However, it is acceptable under the ADA for an employer to make inquiries into the ability of an applicant to perform job-related functions.
- Disability: The ADA requires employers to provide an equal opportunity for an individual with a disability to participate in the job application process and to be considered for a job. Employers may need to provide reasonable accommodations to make job information and the application process accessible and to assist applicants during interviews. An employer may not ask pre-employment inquiries regarding disability but may ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how s/he would perform these functions. Employers should not ask questions regarding workers' compensation claims filed by the applicant, the number of days the applicant missed work as a result of an illness, or whether the applicant anticipates needing time off for treatment of a disability or illness. These inquiries may arguably be considered discrimination based on disability.
- Medical Examinations: The ADA allows an employer to require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties. The employer may condition an offer of employment on the results of such examination if all employees are subjected to such an examination. The employer must notify the applicant if an offer of employment is revoked as a result of the medical examination.
- Drug and Alcohol Testing: Drug testing is not considered a medical examination under the ADA and may be conducted on all applicants. A positive test for illegal drugs can be the grounds for not to hire. Alcohol testing is considered a medical test under the ADA. Therefore, an employer must show that the exclusionary criteria are job related and consistent with the business necessity and that there is no reasonable accommodation that can be made before it can revoke an offer of employment based on a positive alcohol test result.
- Pre-Employment Tests: Any pre-employment testing must be nondiscriminatory. The test must have some valid empirical data, and must be consistent with professional standards. Testing must be accurate and standardized.
- Religion: An employer should not inquire into the religious beliefs of the applicant. However, an employer can inquire into religion only if the employer can show that the inquiry did not have an exclusionary effect or was otherwise justified by business necessity. Instead of asking the applicant his or her religion, the employer should state with particularity the working hours of the position and ask whether the applicant can work those hours.
- Race, Color, National Origin: The Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful to discriminate against any individual on the basis of race, color, or national origin, except in cases where the individual is an unauthorized alien. It is unlawful under IRCA for an employer to hire an individual knowing such individual is an authorized alien. For this reason, it is necessary for the employer to determine the immigration status of the applicant and to provide the necessary documentation as to such status. An employer should ask "are you legally authorized to work in the United States?" The employer should not ask the applicant's place of birth, national origin, race, ancestry, etc. An employer should also not inquire into the applicant's eye and hair color, complexion, height, or weight, etc., as this may be viewed as discrimination on the basis of race, color or national origin.
- Organizations, Non-Work Activities/Hobbies: An employer can ask an applicant's membership in professional organizations, activities, and hobbies only if it is job related. If not job related, this question should not be asked.
- Union Memberships: The National Labor Relations Act makes it an unfair labor practice for an employer to discriminate against employees in any manner for the purpose of encouraging or discouraging membership in a labor organization. This includes employers who refuse to hire job applicants who are union members.
- Pregnancy: An employer should not ask any questions related to pregnancy, childbirth, or other related medical inquiries. Employers should also not ask questions regarding the applicant's plans on having children or ages of the applicant's children. The employer should also refrain from asking questions about arrangements the applicant would make for childcare. Employers can inquire into future job availability and future employment plans.
- Relatives: An employer can ask the names of the applicant's relatives who are employed by the employer or by any competitors of the employer.
- Polygraph Tests: Employers can not require a polygraph, voice stress analyzer, or any test purporting to test the honesty of an employee or a perspective employee.
- Photographs: Employers should not request a photograph of the applicant prior to hiring. However, an employer can request a photograph after hiring for identification purposes.
- Status With Regard to Public Assistance: Employers can not ask any questions regarding public assistance. This includes questions as to whether the applicant owns his/her home, car, etc., as these types of questions may indicate the applicant's status with regard to public assistance.
- Sexual Orientation: Employers can not ask any questions regarding the sexual orientation of the applicant. These questions include the marital status of the applicant.
- References: To safeguard against negligent hiring claims, employers should contact the applicant's past employers and try to verify truthfulness, honesty and freedom from any violence, criminal or improper propensities.
An employer should make the following considerations for each pre-employment inquiry before asking such information from the applicant:
- Does the question have a disproportionate impact on a protected class?
- Is it necessary to know this information before hiring the employee?
- Is it necessary to evaluate the applicant's ability to perform the job?
- Are there alternative methods to obtain the information?
III. Conclusion
The realm of employment law is rapidly changing and employers have a duty to stay on top of the changes. It is important for the employer to keep the interview process as generic as possible and ask all applicants the same questions. When interviewing applicants, it is beneficial to use open-ended questions. Open-ended questions encourage applicants to speak freely about themselves. Generally, applicants are extremely talkative and are willing to discuss personal matters in great depth. Whatever information regarding the applicant's personal life is deemed necessary by the employer generally will be obtained by the use of open-ended questions pertaining to personal background, personal accomplishments, qualifications, ability to perform the job, etc.