If you conduct employment interviews for your company, ensure that the application form asks for information in a lawful manner. The guiding principle behind any question to an applicant is job-related necessity. When you ask questions, ensure that the information is really needed to judge the applicant’s qualifications, level of skills and overall competence for the job for which they are being considered.
The way in which questions are phrased is very important.
Wrong – Are you a U.S. citizen?
Correct – Are you lawfully employable in the United States either by virtue of citizenship or by having authorization from the INS and the Labor Department?
Wrong – How old are you?
Correct – Are you over the age of eighteen?
Wrong – Do you have any children? What are your child care arrangements?
Correct – Questions about family status are not job related and should not be asked.
Wrong – What clubs or organizations do you belong to?
Correct – What professional or trade groups do you belong to that you consider relevant to your ability to perform this job?
Wrong – Have you ever filed a workers’ compensation claim?
Correct – You may not ask this question or any related question during the pre-offer stage.
Wrong – What disabilities do you have?
Correct – Are you able to perform the essential functions of the job to which you are applying? (Be sure you tell the applicant what the essential functions are).
Wrong – When did you graduate from high school?
Correct – What schools have you attended?
Wrong – What is your maiden name?
Correct – Have you ever been known by another name? (Only ask this question if you need to contact a former employer, because a legal liability may exist if an applicant claims that you were trying to determine her ethnic background and consequently didn’t hire her because of it.)
Wrong – Do you smoke?
Correct – Our smoking policy is such—can you adhere to it? (Be aware of any state laws that relate to smoking. Some states prohibit an employer from excluding applicants for off the job smoking.)
Wrong – Do you have AIDS or are you HIV-positive?
Correct – There is no acceptable way to inquire about this, or any other medical condition.
Here are a few areas of inquiry that can cause legal problems.
Race – There are no job-related considerations that would justify asking an applicant a question based on race.
Religion – There are no job-related considerations that would justify asking about religious convictions, unless your organization is a religious institution, which may give preference to individuals of their own religion.
Gender – Generally, there are no appropriate questions based on the applicant’s gender during the interview process.
Sexual Preference – Under certain state and municipal laws, there are no permissible questions regarding an applicant’s sexual preferences.
Height and/or weight restrictions – These questions may support gender or national origin discrimination claims unless their relationship to specific job requirements can be demonstrated.
Age – Under the EEOC Age Discrimination Interpretive Rules, a request for date of birth on the employment application is permissible, with an appropriate disclaimer shown. In practice, this is not asked on applications. Any recruiting effort that is age-biased such as “recent graduate” is unlawful. The Age Discrimination Act of 1967 bars discrimination against persons age 40 or over.
Arrest & Conviction Records – Questions relating an applicant’s conviction record may be asked, if job related.
National Origin – You may not ask an applicant where he/she was born, or where his/her parents were born. You may ask if the applicant is eligible to work in the United States.
Financial Status – An interviewer should not ask if the applicant owns or rents a home or car, or if wages have been previously garnished, unless financial considerations for the job in question exist. Any employer who relies on consumer credit reports in its employment process must comply with the Fair Credit Reporting Act of 1970 and the Consumer Credit Reporting Reform Act of 1996.
Military Record – You may not ask what type of discharge the applicant received from military service. You may ask whether or not the applicant served in the military, period of service, and rank at time of discharge, and type of training and work experience received while in the service.
Disability – You may not ask whether or not the applicant has a particular disability. You may only ask whether or not the applicant can perform the duties of the job in question.
Education or training – Inquire only to the extent that the minimum requirements are specified. However, employment applications may contain space for candidates to supply all education and training.
Pregnancy or medical history – Attendance records at a previous employer may be discussed in most situations as long as you don’t refer to illness or disability.
Club and organizational memberships – Do not inquire into this area unless it is job related.
The above areas of inquiry are widely regarded as “off-limits” for discussion in an interview for employment. Most of these areas relate directly to federal and state employment laws.
Legislation covering equal employment opportunity is extensive and complex. Be careful using the words “over qualified” with older candidates. State laws vary. The Equal Employment Opportunity Commission does look with “extreme disfavor” on questions about age, color, disability, national origin, race, religion, gender or veteran status. Consult an attorney for legal advice because this list is NOT all-inclusive.
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