Legal Considerations in Hiring Employees
Questions to Avoid During Interviews
In conducting pre-employment interviews, it is important to keep in mind that all inquiries should be limited to job-related information. Questions which seek out information as to gender, pregnancy, race, sexual orientation, natural origin, age or disability need to be avoided. There are multiple sources available on the internet which provide charts of “legal” and “illegal” questions. The EEOC website provides a good summary of the “do’s” and “don’ts”, which are reprinted from the EEOC website, (EEOC.gov) below:
- Pre-Employment Inquiries and Race
In general, it is assumed that pre-employment requests for information will form the basis for hiring decisions. Therefore, employers should not request information that discloses or tend to disclose an applicant’s race unless it has a legitimate business need for such information. If an employer legitimately needs information about its employees’ or applicants’ race for affirmative action purposes and/or to track applicant flow, it may obtain the necessary information and simultaneously guard against discriminatory selection by using a mechanism, such as “tear-off” sheets. This allows the employer to separate the race-related information from the information used to determine if the person is qualified for the job. Asking for race-related information on the telephone could probably never be justified.
- Pre-employment Inquiries and Height & Weight
Height and weight requirements tend to disproportionately limit the employment opportunities of some protected groups and unless the employer can demonstrate how the need is related to the job, it may be viewed as illegal under federal law. Additionally, some states have laws specifically prohibiting discrimination on the basis of height and weight unless based on actual job requirements. Therefore, unless job-related, inquiries about height and weight should be avoided.
- Pre-Employment Inquiries and Financial Information
“Financial Information” includes current or past assets, liabilities, or credit rating, bankruptcy or garnishment, refusal or cancellation of bonding, car ownership, rental or ownership of a house, length of residence at an address, charge accounts, furniture ownership, or bank accounts. Federal law does not prevent employers from asking about your financial information. But, the federal EEO laws do prohibit employers from illegally discriminating when using financial information to make employment decisions.
First, employers must not apply a financial requirement differently to different people based on their race, color, national origin, religion, gender, disability, age or genetic information. Second, an employer must not have a financial requirement if it does not help the employer to accurately identify responsible and reliable employees, and if, at the same time, the requirement significantly disadvantage people of a particular race, color, national origin, religion, or gender. Third, an employer might have to make an exception to a financial requirement for a person who cannot meet the requirement because of a disability.
Employers also must follow the Fair Credit Reporting Act (FCRA), which is not enforced by EEOC. It is enforced by the U.S. Federal Trade Commission. This law requires employers to tell [an employee] in writing if they will do a background check. It also requires [employers] to get [an employee’s] written permission to do it, and to send the employee certain notices when they use the information. If you would like to know more about FCRA, please visit: http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre36.shtm, or contact the Federal Trade Commission at 1-877-FTC-HELP (1-877-382-4357).
- Pre-Employment Inquiries and Unemployed Status
“Unemployed status” includes current or past periods of unemployment. Federal law does not prevent employers from asking about unemployed status, but the federal EEO laws do prohibit using this information to discriminate. If an employer does reject job applicants based on unemployed status, it must do so consistently, without regard to race, color, national origin, gender, disability, age, and genetic information.
Employers also must not screen out job applicants based on unemployed status if it does not help the employer to accurately identify responsible and reliable employees and if, at the same time, it significantly disadvantages people of a particular race, color, national origin, religion, or gender.
In addition, an employer may have to make exceptions to a policy of rejecting applicants based on unemployed status for applicants whose unemployed status was caused by a disability.
- Background Checks
When making personnel decisions – including hiring, retention, promotion, and reassignment – employers sometimes want to consider the backgrounds of applicants and employees. Except for certain restrictions related to medical and genetic information, it is not illegal for an employer to ask questions about an applicant or employees background, or to require a background check. But the employer cannot conduct background checks or use the information obtained in a manner that denies equal employment opportunity to anyone on a protected basis, by intent or by unlawful disparate impact.
- Pre-Employment Inquiries and Religious Affiliation or Belief
Questions about an applicant’s religious affiliation or belief (unless the religious is a bona fide occupational qualification (BFOQ), are generally viewed as non-job related and problematic under federal law.
Religious corporations, associations, educational institutions, or societies are exempt from the federal laws that EEOC enforces when it comes to the employment of individuals based on their particular religion. In other words, an employer whose purpose and character is primarily religious is permitted to lean towards hiring persons of the same religion. This exception only relieves religious organizations only from the ban on employment discrimination based on religion. It does not exempt such organizations from employing individuals due to their race, gender, national origin, disability, color, and/or age. Other employers should avoid questions about an applicant’s religious affiliation, such as place of worship, days of worship, and religious holidays and should not ask for references from religious leaders, such as minister, rabbi, priest, or pastor.
- Pre-Employment Inquiries and Citizenship
Employers should not ask whether or not a job applicant is a United States citizen before making an offer of employment. The Immigration Reform and Control Act of 12986 (IRCA) makes it illegal for employers to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based on an individual’s citizenship or immigration status. For example, the law prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation or government contract; it also prohibits employers from preferring to hire temporary visa holders or undocumented workers over qualified U.S. citizens or other protected individuals, such as refugees or individuals granted asylum.
IRCA requires employers to verify the identity and employment eligibility of all employees hired after November 6, 1986, by completing the Employment Eligibility Verification (I-9) Form, and reviewing documents showing the employee’s identity and employment authorization. The law prohibits employers from rejecting valid documents or insisting on additional documents beyond what’s legally required for employment eligibility verification (or the Department of Homeland Security (DHS) Form I-9), based on an employee’s citizenship status or national origin. For example, an employer cannot require only individuals the employer perceives as “foreign” to verify their employment eligibility or produce specific documents, such as Permanent Resident (“green”) cards or Employment Authorization documents. It is the employee’s choice which of the permitted documents to show for employment eligibility verification. As long as the document appears reasonably genuine on its face, and relates to the employee, it should be accepted.
Because of potential claims of illegal discrimination, employment eligibility verification should be conducted after an offer to hire has been made. Applicants may be informed of these requirements in the pre-employment setting by adding the following statement on the employment application:
“In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification document form upon hire.”
The Immigration Reform and Control Act of 1986 (IRCA) also prohibits discrimination on the basis of national origin by smaller employers (with 4 to 14 employees). IRCA prohibits retaliation against individuals for asserting their rights under the Act, or for filing a charge or assisting in an investigation or proceeding under IRCA. Discrimination charges under IRCA are processed by the Department of Justice, Office of Special Counsel (OSC) for Immigration Related Unfair Employment Practices. For more information, go to http://www.usdoj.gov/crt/osc or call at 1-800-255-7688.
- Pre-Employment Inquiries and Marital Status or Number of Children
Questions about marital status and number and ages of children are frequently used to discriminate against women and may violate Title VII if used to deny or limit employment opportunities.
It is clearly discriminatory to ask such questions only of women and not men (or vice-versa). Even if asked of both men and women, such questions may be seen as evidence of intent to discriminate against, for example, women with children.
Generally, employers should not use non job-related questions involving marital status, number and/or ages of children or dependents, or names of spouses or children of the applicant. Such inquiries may be asked after an employment offer has been made and accepted if needed for insurance or other legitimate business purposes.
The following pre-employment inquiries may be regarded as evidence of intent to discriminate when asked in the pre-employment context:
- Whether applicant is pregnant.
- Marital status of applicant or whether applicant plans to marry.
- Number and age of children or future child bearing plans.
- Child care arrangements.
- Employment status of spouse.
- Name of Spouse.
- Pre-Employment Inquiries and Gender
Questions about an applicant’s sex, (unless it is a bona fide occupational qualification (BFOQ) and is essential to a particular position or occupation), marital status, pregnancy, medical history of pregnancy, future child bearing plans, number and/or ages of children or dependents, provisions for child care, abortions, birth control, ability to reproduce, and name or address of spouse or children are generally viewed as non-job-related and problematic under Title VII.
- Pre-Employment Inquiries and Disability
Under the law, employers generally cannot ask disability-related questions or require medical examinations until after an applicant has been given a conditional job offer. This is because, in the past, this information was frequently used to exclude applicants with disabilities before their ability to perform a job was evaluated.
Employers are permitted pre-offer to ask limited questions about reasonable accommodation because if they reasonably believe that the applicant may need accommodation because of an obvious or voluntarily disclosed disability, or where the applicant has disclosed a need for accommodation. Also pre-offer, employers may ask if the applicant will need an accommodation to perform a specific job duty, and if the answer is yes, the employer may then ask what the accommodation would be.
The employer may not ask any questions about the nature or severity of the disability pre-offer. However, after making a conditional job offer, an employer may ask any disability-related question or require a medical examination as long as all individuals selected for the same job are asked the same questions or made to take the same examination.