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Unacceptable
Questions for Interviews and Employment Applications
The
basic principle in determining the acceptability of
any applicant questions is, can the employer demonstrate
a job-related reason for asking the question? In asking
an applicant questions, the interviewer should decide
whether or not the information is really necessary
in order to evaluate the applicant's qualifications,
level of skills and overall competence for the job
in question?
Problem
areas are those discriminatory questions that inquire
about the applicant's gender, race, age, national
origin, or religion. Other problems arise when female
applicants are asked different questions than male
applicants, or married applicants are asked different
questions than unmarried applicants.
The
Equal Employment Opportunity Commission issued its
Pre-employment Inquiry Guidelines in 1981 and it's
Enforcement Guidance: Pre-employment Disability-Related
Questions and Medical Examinations in 1995. These
address the issue of interview questions which, if
used in making a selection decision, have a discriminatory
effect by screening out minority applicants, female
candidates, and older applicants and individuals with
a disability, etc., for the particular job in question.
The
following are areas that are deemed to be discriminatory
for most questions:
- 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. Specifically:
- Women
are no longer protected under state wage/hour
laws re: number of hours worked, lifting
restrictions, etc.
- It
is unlawful to deny a female applicant
employment because she is pregnant, or
planning to have a child at some future
date.
- Questions
on marital status, number of children,
child care arrangements, etc. are not
appropriate.
- Questions
as to availability to work should be job-related:
- What
hours can you work?
- What
shift(s) can you work?
- Can
you work on weekends and/or holidays?
- Sexual
Preference - Under certain state and municipal
laws, there are no permissible questions regarding
an applicant's sexual preferences.
- Height
and/or Weight - These questions may support
gender or national origin discrimination claims
unless their relationship to specific job requirements
can be demonstrated.
- Age
- Under the EEOC's Age Discrimination Interpretive
Rules issued in 1981, as amended, 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", or any question
during the interview process that deters employment
because of age is unlawful. The Age Discrimination
Act of 1967 bars discrimination against persons
age 40 or over.
- Arrest
and Conviction Records - Questions relating
to an applicant's arrest record are improper,
while questions of an applicant's conviction record
may be asked, if job related. The Equal Employment
Opportunity Commission and many states prohibit
use of arrest records for employment decisions
because they are inherently biased against applicants
in protected classes. The EEOC has issued a Revised
Policy Statement covering the use of conviction
records by employers in making employment decisions:
- The
employer must establish a business necessity
for use of an applicant's conviction record
in its employment decision. In establishing
business necessity, the employer must
consider three factors to justify use
of a conviction record:
- Nature
and gravity of the offense for
which convicted
- Amount
of time that has elapsed since
the applicant's conviction and
or completion of sentence
- The
nature of the job in question
as it relates to the nature of
the offense committed
- The
EEOC's Revised Policy Statement eliminated
the existing requirement that employers
consider the applicant's prior employment
history along with rehabilitation efforts,
if any. The Revised Policy Statement requires
that the employer consider job-relatedness
of the conviction, plus the lapse of time
between the conviction and current job
selection process.
- National
Origin - You may not ask an applicant where
they were born, or where their 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, 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.
Although
federal EEO laws do not specifically prohibit any
pre-employment questions, the EEOC does look with
"extreme disfavor" on questions about age,
color, disability, national origin, race, religion,
gender or veteran status. Many state fair employment
laws do expressly forbid certain types of questions.
Following is a list of some examples of unacceptable
and acceptable questions. This list is not inclusive.
All interview questions should be reviewed by labor
and employment counsel before use.
Examples
of Acceptable and Unacceptable Questions
Attendance
& Reliability
Unacceptable
- How
many children do you have?
- Do
you have children that are not in school?
- Who
looks after your children for you?
- Where
do you go to church?
- What
religion are you?
- Do
you have a car?
- What
kind of car do you have?
Acceptable
- What
days and hours can you work?
- Are
there any specific times that you cannot work?
- Do
have any responsibilities other than work that
will interfere with specific job requirements
such as traveling?
National
Origin
Unacceptable
- What
country are you from?
- Where
are your parents from?
- What
kind of name is that?
- What
is your maiden name?
- What
is your native language?
Acceptable
- Are
you legally eligible to work in the United States?
Language
Skills
Unacceptable
- What
is your native language? (You may not inquire
into how an applicant acquired the language skills.)
Acceptable
- What
languages do you speak and write fluently (only
if the job requires additional languages).
Reference
Checking
Unacceptable
- What
is your father's surname?
- What
are the names of your relatives?
Unacceptable
Arrest
and Conviction
Unacceptable
- Have
you ever been arrested?
Acceptable
- Have
you ever been convicted of a crime? If yes, what
was the disposition of the case?
Disabilities
Unacceptable
- Do
you have any physical disabilities?
- Are
you being treated for any illnesses?
Acceptable
- Can
you perform the necessary functions of this job?
(You can also ask for a demonstration of that
ability.)
Emergency
Contact Information
Unacceptable
- What
is the name and address of the relative to be
notified in case of an emergency?
Acceptable
- What
is the name and address of the person to be notified
in case of an emergency? (REQUEST THIS ONLY AFTER
THE PERSON HAS BEEN HIRED.)
Credit
Record
Unacceptable
- Do
you own your own home?
- Have
your wages ever been garnished?
- Have
you ever declared bankruptcy?
Acceptable
- None
(Credit information may be used if it is acquired
in compliance with the Fair Credit Reporting Act
of 1970 and the Consumer Credit Reporting Reform
Act Of 1996.)
Military
Record
Unacceptable
- What
type of discharge did you receive?
Acceptable
- What
type of education, training, and work experience
did you receive while in the military?
Organizations
and Clubs
Unacceptable
- What
clubs, societies or lodges do you belong to?
Acceptable
- The
company may inquire into an applicant's membership
in organizations which the applicant considers
relevant to their ability to perform job.
- Do
you belong to the union?
Race
Unacceptable
- Any
questions regarding the applicant's complexion
or color of skin.
Acceptable
Workers's
Compensation
Unacceptable
- Have
you ever filed a claim for worker's compensation?
- Have
you ever been injured on the job?
Acceptable
Religion
Unacceptable
- What
is your denomination?
- What
church do you belong to?
- Who
is your pastor/priest/minister?
- What
religious holidays do you observe?
Acceptable
Gender
Unacceptable
- Do
you wish to be addressed as Mr.?, Mrs.?, Miss?,
or Ms.?
Acceptable
- None
Addresses
Unacceptable
- How
long have you lived at your current address?
- What
was your previous address?
- How
long did you live there?
Unacceptable
Education
Unacceptable
- When
did you graduate from high school or college?
Acceptable
- Do
you have a high school diploma or equivalent?
- Do
you have a college degree?
Personal
Unacceptable
- What
color are your eyes?
- What
color is your hair?
- How
much do you weigh?
Acceptable
- Such
questions are only permitted if they are related
to a specific job requirement.
This
list is not inclusive. All interview questions should
be reviewed by labor and employment counsel before
use.
©
Chuck Russell 1999
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