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Several federal laws and the laws of all 50 states limit what employers can ask on application forms or in interviews. A "wrong" question can land an employer in court for discrimination. Below are tips for making sure you are in compliance. For most employers, the "shoulds" and "should nots" of application and interview questions seem more complicated each year. If you ask questions that elicit information about the applicant’s protected class membership (such as race, national origin, and age), any decision you make may be "tainted" by that knowledge. Since laws protect applicants from discrimination based on numerous protected classes, even recently updated application forms may include questions that could pose legal problems later. However, some basic rules can help you clean up your application forms and interview questions. Shape Questions to Avoid Identifying Protected Class Members Applicants and employees protected against discrimination by federal laws are considered to be members of "protected classes." Currently, federal laws prohibit employment discrimination based on race, color, religion, sex, national origin, pregnancy, age 40 or older, citizenship status, disability, military status, and union membership. State and local fair employment laws also may protect additional classes and often apply to smaller employers. Many states add protections against discrimination based on marital status (including California, Florida, and Illinois) and arrest records (including California, Michigan, and New York), while some also prohibit sexual orientation discrimination (including California and Massachusetts). Over half of the states also protect smokers against adverse employment decisions based on smoking off-duty, and some even protect the off-duty use of "lawful products" (Illinois) and the off-duty participation in lawful activities (New York). Questions Aren’t Illegal; It’s How You Use the Answers With the exception of the Americans with Disabilities Act (ADA) (which prohibits all preemployment medical inquiries), no federal law specifically prohibits employers from asking questions about an applicant’s protected class membership. For example, it is not a violation of Title VII to ask an applicant’s race or sex. However, the Equal Employment Opportunity Commission (EEOC) and most courts will assume that all questions are asked for a purpose and that selection or hiring decisions will be made on the basis of the answers. Thus, if you ask about an applicant’s age or national origin, it is assumed that you intend to base your decision on that information. Even the simple asking of the question may be used as evidence against an employer in a discrimination claim. To prevent any inference of discrimination or improper motive, therefore, all questions should relate to the candidate’s ability to perform the job. Thus, you should focus on past experience, relevant education, prior employment, and the job duties of the particular position. In addition, you should make sure that questions do not have the effect of "screening out" protected class members. For example, asking "Who is the primary caregiver for your children?" could be interpreted as screening out female candidates. Twelve Topics to Eliminate To help you determine what questions to eliminate in the interview process, the Editors have compiled a list of topics that could lead to claims of discrimination from applicants. Many of the topics appear to be neutral because they do not specifically ask about a protected class. However, the EEOC and courts interpreting the discrimination laws have determined that these questions can disproportionately screen out applicants belonging to a protected class. For example, dishonorable military discharges are thought to have a disparate impact on minorities, as do questions about arrests or credit history. Some questions appear on the list because they may indirectly reveal information about the applicant’s membership in a protected class (e.g., dates of graduation may reveal that the applicant is over 40 years old). Therefore, you should review your application forms and interview questions to eliminate questions that indicate: Race. Do not ask about an applicant’s race or ethnic origin. Also, do not request a photograph or inquire about physical attributes. National origin. Do not ask applicants to reveal their national origin, citizenship, or Social Security number. However, you may ask if the applicant is eligible to work in the U.S. Disability. To comply with the ADA, do not ask questions about specific diseases, number of days the applicant was sick in the previous year (but you may ask the number of absences 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 (current illegal use may be questioned), and prescription drug use. You may ask all applicants about their ability to perform the functions of the job. In addition, once you make a job offer, you may require medical examinations and make medical inquiries before the candidate begins work. (For a detailed discussion of the ADA and medical inquiries, see the November 1998 issue of HR Matters, "The ADA and Preemployment Medical Inquiries: A Prescription for Compliance.") Gender. Do not ask about a person’s gender; marital status; spouse’s name, maiden name, preference for "Miss," "Mrs.," or "Ms."; or pregnancy, family plans, and child care arrangements. You can ask if an applicant has ever been known by another name in order to perform accurate background checks. Age. Do not ask age, date of birth (but you may ask if the applicant is of legal age to work), or even age-related information such as the dates of primary or secondary school attendance (unless educational degrees are necessary for the job and you intend to verify the degree). Religion. Do not inquire about religious holidays observed. You may ask about the ability to work on weekends or holidays if availability is job-related. However, you may have to accommodate applicants whose religious observance conflicts with work schedules. Union membership. Do not attempt to determine an applicant’s current or intended union affiliation. Military status. 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. Arrest or criminal record. Many state laws prohibit asking about a candidate’s arrest record, and some limit the use of conviction records. In addition, excluding candidates from the job because of arrests can expose the employer to claims of disparate impact based on race. However, you generally may investigate convictions for relevance to the job. Financial status. Do not ask about a candidate’s financial status (unless job-related), past pay garnishments, or bankruptcy. You may perform credit checks as allowed by the Fair Credit Reporting Act. Legal off-duty activities. Do not inquire about smoking or other legal, but unhealthful or dangerous, activities that the applicant may engage in off-duty. EEO-related information. Do not ask about prior equal opportunity claims, sexual orientation, and nonprofessional memberships and charities (since they may indicate the applicant’s race, sex, or ethnic origin). Employers that are required to maintain affirmative action programs may need to compile data on the number of applicants who are females, minorities, disabled, or Vietnam-era or disabled veterans. You should solicit this information on a separate or tear-off sheet on the application and 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 separately from other information about the applicant. Questions You Can Ask at a Later Point Many of the questions that are inappropriate at the screening stage need to be answered before employment begins. For example, an applicant’s answers to interview questions asking for a Social Security number or for documents to prove eligibility to work in the U.S. may indicate his national origin. However, before the successful candidate begins working, the employer legitimately needs his Social Security number for payroll purposes, or for a background check, and proof of authorization to work in the U.S. While some employers may be tempted to obtain this information at the screening stage as a convenience, the danger that the answers will be presumed to have affected the hiring decision outweighs any possible time saved. Therefore, employers should wait at least until an offer of employment has been made in order to eliminate possible concerns about how this identifying information is used. In addition, to further protect against discrimination claims, you should have a job-related reason for making the request. Review Forms, Train Interviewers Application forms and personal interviews convey the first impression many candidates have of your organization. If you ask too many personal questions or questions that are not clearly job-related, you are risking a potential discrimination claim and also may be leaving the impression that your organization is unprofessional. Therefore, you should compare your application and interview questions to the twelve problem areas identified above and eliminate those not required to judge the applicant’s suitability for the position. Then, analyze any remaining questions for their potential to screen out certain groups disproportionately and consider alternative questions. In addition, train all managers who conduct interviews to avoid asking improper questions. For example, some organizations require all interviewers to stick to a scripted list of acceptable questions. By taking these steps, you can help protect your organization from discrimination claims. For more information on interview and application questions, see Hiring, Chapter 202, notes 7, 12, 15 and 20. For more information on the ADA, see "The ADA and Preemployment Medical Inquiries: A Prescription for Compliance," HR Matters, November 1998. This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.
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