Most employers know that their workers are protected from discrimination while they are employed. Surprisingly, some are unaware that prospective employees are protected throughout the application and hiring process as well. Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disabilities Act, the Pregnancy Discrimination Act and the Age Discrimination in Employment Act of 1967, as well as other Federal and state laws, are all applicable to prospective employees. Therefore, employers must be extremely careful about the questions they ask individuals applying for a position.
Employers should shy away from asking any questions that might give a prospective employee reason to believe they were not selected for a position due to discrimination. Employers should not inquire about an applicant’s race, unless it is for an Equal Employment Opportunity Commission purpose (which should be noted). They should also not ask about an applicant’s citizenship status and instead should inquire as to whether the individual has authorization to work in the United States.
Employers should also be sensitive to discrimination based on gender and sexual orientation when conducting interviews. They should not ask gender-related questions or anything regarding pregnancy or children. It is also not a good idea to ask a prospective employee about marital status or religion. An employer might be concerned that a prospective employee will miss work due to young children or religious holidays. But, if they are concerned about an applicant’s attendance, they should only ask about attendance records at previous places of employment. Now, many states have laws relating to discrimination based on sexual orientation and employers should be careful not to inquire about this detail as well.
Individuals with disabilities are protected under Federal and state law. An employer should never ask about a disability. All that matters is that the individual is able to perform job duties, so an employer should only inquire about functioning in that respect. For example, if the applicant is interested in an inventory position that requires standing for the entire 8 hour shift and lifting heavy boxes, but the applicant suffers from a disability, the employer should only ask whether their disability prohibits them from performing these duties. Many states now have or are in the process of passing laws that prohibit discrimination based on criminal convictions, so employers should be aware not to ask about an applicant’s criminal history unless they are sure it is allowed under their state’s law. For the same reason, employers should not ask about credit history or personal finances unless these characteristics have a direct affect on the applicant’s ability to do their job.
If you are a business owner, it is in your best interest to put together a list of interview questions for prospective employees and to review that list with an experienced attorney. You should also be sure that all of the parties conducting interviews are aware of the rules relating to interview questions and abide by them.