Pre-Employment Inquiries (General)
As a rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.
Employers are explicitly prohibited from making pre-offer inquiries about disability.
Although state and federal equal opportunity laws do not clearly forbid employers from making pre-employment inquiries that relate to, or disproportionately screen out members based on race, color, sex, national origin, religion, or age, such inquiries may be used as evidence of an employer’s intent to discriminate unless the questions asked can be justified by some business purpose.
Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant’s race, sex, national origin, disability status, age, religion, color or ancestry if answered, should generally be avoided.
Similarly, employers should not ask for a photograph of an applicant. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted.
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 tends 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 a person is qualified for the job. Asking for race-related information on the telephone could probably never be justified.
- 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. Several states and localities 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.
- 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, sex, 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 disadvantages people of a particular race, color, national origin, religion, or sex.
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 you in writing if they will do a background check. It also requires them to get your written permission to do it and to send you certain notices when they use the information.
Depending on the state you live in, there also may be state laws governing employers’ use of financial information.
- 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, religion, sex, disability, age, and genetic information.
Employers also must not screen out job applicants based on the 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 sex.
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.
Depending on the state you live in, there also may be state laws governing employers’ consideration of unemployed status.
- 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 applicants 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 the unlawful disparate impact.
- Religious Affiliation Or Beliefs: Questions about an applicant’s religious affiliation or beliefs (unless the religion 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 are primarily religious is permitted to lean towards hiring persons of the same religion. This exception 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, e.g., minister, rabbi, priest, imam, or pastor.
- Citizenship:Most employers should not ask whether a job applicant is a United States citizen before making an offer of employment. The INA 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. Other state and federal laws require some employers to use E-Verify. Federal law prohibits employers from rejecting valid documents or insisting on additional documents beyond what is required for the Form I-9 or E-Verify processes, based on an employee’s citizenship status or national origin. For example, an employer cannot require only those who the employer perceives as “foreign” to produce specific documents, such as Permanent Resident (“green”) cards or Employment Authorization Documents. Employees can choose which documents to show for employment eligibility verification from the Form I-9 Lists of Acceptable Documents. Employers should accept any unexpired document from the Lists of Acceptable Documents so long as the document appears reasonably genuine on its face and relates to the employee.
Federal law also prohibits employers from conducting the Form I-9 and E-Verify processes before the employee has accepted an offer of employment. 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 form upon hire.”
E-Verify employers must use the system consistently and without regard to the citizenship, immigration status, or national origin of employees. They must also notify every employee who receives a Tentative Nonconfirmation (TNC) and should not make assumptions about employment authorization based on the TNC issuance. If an employee contests a TNC, employers cannot fire, suspend, modify a work schedule, delay job placement, or otherwise take any adverse action against the employee just because the employee received a TNC.
As stated above, the INA prohibits employment discrimination based on national origin by smaller employers (with four to 14 employees). The INA prohibits retaliation against individuals for asserting their rights under the INA, or for filing a charge or assisting in an investigation or proceeding under the INA. Discrimination charges under the INA are processed by the Immigrant and Employee Rights Section (IER) in the Department of Justice’s Civil Rights Division.
- Marital Status, 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 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 the applicant is pregnant.
- Marital status of the applicant or whether the applicant plans to marry.
- Number and age of children or future childbearing plans.
- Childcare arrangements.
- Employment status of spouse.
- Name of a spouse.
- 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 childbearing 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.
Any pre-employment inquiry in connection with prospective employment expressing or implying limitations or special treatment because of sex (unless based upon BFOQ) or any inquiry made of members of one sex and not the other, is similarly troublesome.
- 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 if they reasonably believe that the applicant may need an accommodation because of an obvious or voluntarily disclosed a 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 if all individuals selected for the same job are asked the same questions or made to take the same examination.
- MedicalQuestions & Examinations: The ADA places restrictions on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.
An employer may not ask a job applicant, for example, if he or she has a disability (or about the nature of an obvious disability). An employer also may not ask a job applicant to answer medical questions or take a medical exam before making a job offer.
An employer may ask a job applicant whether they can perform the job and how they would perform the job. The law allows an employer to condition a job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same job must answer the questions or take the exam.
Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer has reason to believe an employee would not be able to perform a job successfully or safely because of a medical condition.
The law also requires that the employers keep all medical records and information confidential and in separate medical files.
In general, an employer may establish a dress code which applies to all employees or employees within certain job categories. However, there are a few possible exceptions.
While an employer may require all workers to follow a uniform dress code even if the dress code conflicts with some workers’ ethnic beliefs or practices, a dress code must not treat some employees less favorably because of their national origin. For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin.
Moreover, if the dress code conflicts with an employee’s religious practices and the employee request an accommodation, the employer must modify the dress code or permit an exception to the dress code unless doing so would result in an undue hardship.
Similarly, if an employee requests an accommodation to the dress code because of his disability, the employer must modify the dress code or permit an exception to the dress code, unless doing so would result in an undue hardship. (U.S. Equal Employment Opportunity Commission, n.d.)