What You Can & Can’t Ask Potential Employees
There are certain things an employer can’t ask, whether on an application form or during a personal interview, before an individual accepts an offer and begins work. In general, you should base your questions on the business necessity of “needing to know” the information. If the information you are seeking is in fact related to the position for which you are recruiting, then all candidates (male, female, minority, non-minority) should be asked the same questions. Following are examples of different types of inquiries that have been ruled permissible or not permissible.
|National Origin||(See Citizenship below)||Inquiry into applicant’s lineage, ancestry, nation of origin, descent, parentage or nationality of applicant’s parents or spouse.|
|Sex/Marital Status||Inquiry into marital status may be made after hiring.||Are you married? Are you single? Divorced? Separated? Request for any information about spouse. What are the ages of your children, if any? Do not ask who will care for children if hired or how they will be cared for.
To female applicant:questions about maiden name or father’s surname.
|Religion or Creed||No.||Inquiry into applicant’s religious denomination, religious affiliations, church, parish, pastor or religious holidays observed.|
|Race or Color||Questions about race may be made after hiring for affirmative action reporting purposes.||Inquiry into nationality, involvement with minority organizations.|
|Birth Control||No.||Inquiry into applicant’s plans to have a family.|
|Age||No.||How old are you? What is your date of birth?|
|Birth date||Some documents, i.e. birth certificate, naturalization record, etc., must be provided by a new hire to prove work eligibility in the U.S. (See Citizenship below.)|
|Arrest Record*||No. (See footnote)||Have you ever been arrested?|
|Photograph||May be requested after hiring for identification purposes.||Requirement or option that applicant affix a photograph to employment application at any time before beginning work.|
|Citizenship||U.S. Immigration law requires that you establish that an employee is eligible for employment in the U.S. The Immigration & Naturalization Service has a handbook and a form (I-9), which should be obtained from the INS. The I-9 must be signed within 3 days of hiring, and retained by the employer for 3 years after hiring or 1 year after termination, whichever is later.|
|Language||Inquiry into languages applicant speaks and writes fluently (only if job related).||What is your native language?|
|Education||Inquiry into applicant’s academic, vocational or professional education, and the public and private schools attended.||Any inquiry which would reveal the nationality or religious affiliation of a school.|
|Travel||Can you travel extensively?||Inquiry into conflict that traveling might create with spouse or children.|
|Address or Duration||Inquiry into place and length of current address.||Asking applicants who resides with them, or if applicants own or rent their home.|
|Organizations||Inquiry into offices applicant holds in organizations, excluding any organization, the name or character of which indicates the race, color, religion, sex, national origin, handicap, age or ancestry of its members,unless volunteered.||Inquiry into all clubs or organizations where membership is held.|
|Experience||Inquiry into work experience, operation of equipment, computers, etc. necessary to carry out the job.||Asking a female if she would be comfortable supervising men or a man if he would be comfortable supervising women.|
|*Questions about actual convictions which relate to the fitness of the applicant to perform job may be covered by the firm’s pre-employment background investigation procedures, but may not be the subject of questioning.|
Care should be taken to record and save in your files accurate, factual, and job-related written remarks on all employment interviews or documents. Should a charge of discrimination be brought by a candidate, any written documents used in the selection process may be reviewed.
If, after the first interview, it is clear that the candidate is not eligible for employment by the company, you may decide to tell the candidate. The only situations during which you would generally communicate a rejection during an initial interview would be the following:
A. Employment of the individual would violate the nepotism policy of the firm (e.g., candidate is a relative of either a current staff member, officer or director), or
B. The candidate is neither a United States citizen, nor an alien authorized to work in the U.S.
In summary, when interviewing, keep following points in mind:
1. All questions should be related to the position for which the candidate is applying.
2. All selection criteria should be equally applied to all applicants, regardless of race, color, national origin, sex, age, religion, marital status or disability group.
Special Note: These rules are subject to changes in laws, regulations and interpretations. You should contact an attorney familiar with equal employment opportunity laws at least annually to update your list of questions.