OpenJurist

What can a potential employer ask me before hiring me?

As a general 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-employment 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.

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. A number of 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.

Credit Rating or Economic Status

Inquiry into an applicant's current or past assets, liabilities, or credit rating, including 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 generally should be avoided because they tend to impact more adversely on minorities and females. Exceptions exist if the employer can show that such information is essential to the particular job in question.

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 is 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

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 is 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, e.g., 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).

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.

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.

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.

Arrest & Conviction

There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when

  • considering the nature of the job,
  • the nature and seriousness of the offense,
  • and the length of time since it occurred.

This is also true for a conviction.

Several state laws limit the use of arrest and conviction records by prospective employers. These range from laws and rules prohibiting the employer from asking the applicant any questions about arrest records to those restricting the employer's use of conviction data in making an employment decision.

Security/Background Checks for Certain Religious or Ethnic Groups

If the employer requires all other applicants to undergo background checks before being offered a position, the employer may require members of religious or ethnic groups to undergo the same pre-employment investigations.

Of course, as with its other employment practices, the employer may not subject only particular religious or ethnic groups, such as Muslims or Arabs, to heightened security checks.

Some employers, such as defense contractors, may require a security clearance for certain jobs pursuant to a federal statute or Executive Order.

Clearance determinations must generally be processed and made without regard to race, religion, or national origin. However, security clearance determinations for positions subject to national security requirements under a federal statute or an Executive Order are not generally subject to review under the equal employment opportunity statutes.

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 to ask limited questions about reasonable accommodation 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.

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.

Medical Questions & 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 have to 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.

Ask an Attorney

Feel free to ask a legal questions that you would like answered. Your question will go directly and only to Deskin Law Firm, a professional law corporation. Deskin Law Firm will contact you directly to discuss your situation, usually via telephone, so please provide multiple ways to reach you via phone. Your situation will be kept confidential. There is no cost to discuss your situation and no attorney-client relationship is created by simply filling out the form and sending it.

Please type your first and last name.

Please type your area code and phone number.

To most effectively be able to reach you, please type another phone number where we may be able to reach you.

Please type the city and state (and country if outside the USA) that you live in.

Please type your email address and check it to make sure it is correct.

CAPTCHA

This question is for testing whether you are a human visitor and to prevent automated spam submissions.
9 + 3 =
Solve this simple math problem and enter the result. E.g. for 1+3, enter 4.