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Legal Guidelines for Interviewing

Federal legislation mandates that companies practice nondiscriminatory actions during the hiring process. This means that, by law, you are not allowed to make your hiring decisions based on anything other than bona fide occupational qualifications. In other words, if a person has the necessary skills to be successful in the job, you cannot discriminate based on:

  • Age
  • Sex
  • Ethnic origin
  • Religious preference or affiliation
  • Sexual orientation
  • Marital status
  • Disabilities

Any inquiry should be avoided that, although not specifically listed here, is designed to elicit information as to race, color, ancestry, age, sex, religion, disability, or arrest and court record unless based upon a bona fide occupational qualification.

Name

Permissible Inquiries

  • "Have you worked for this company using a different name?"
  • "Is any additional information relative to change of name or use of an assumed name or nickname necessary to enable a check on your work and educational record? If so, please explain."

Inquiries That Must Be Avoided

  • Inquiries about the name that would indicate applicant's lineage, ancestry, national origin, or descent
  • Inquiry about preferred title: Ms., Miss, or Mrs.

Marital and Family Status

Permissible Inquiries

  • Whether applicant can meet specified work schedules, or has activities, commitments, or responsibilities that may hinder the meeting of work attendance requirements.
  • Inquiries, made to males and females alike, concerning duration of stay on job or anticipated absences.

Inquiries That Must Be Avoided

  • Any inquiry indicating whether an applicant is married, single, divorced, engaged, etc.
  • Number and age of children
  • Information on child care arrangements
  • Any questions concerning pregnancy
  • "Do you intend to get married soon?"
  • "Are you a single parent?"
  • "How many people live in your household?"
  • "Do you have someone who can take care of a sick child?"
  • "Can you travel?"
  • Any similar question that directly or indirectly results in limitation of job opportunity in any way

Age

The Age Discrimination in Employment Act of 1967 forbids discrimination against persons between the ages of 40 and 70.

Permissible Inquiries

  • If a minor, requiring proof of age in a form of a work permit or a certificate of age
  • Requiring proof of age by birth certificate after being hired.
  • Inquiry as to whether the applicant meets the minimum age requirement as set by law and indication that, on hiring, proof of age must be submitted in the form of birth certificate or other forms of proof of age
  • If age is a legal requirement: "If hired, can you furnish proof of age?", or statement that hire is subject to verification of age
  • Inquiry as to whether an applicant is younger than the employer's regular retirement age

Inquiries That Must Be Avoided

  • Requirement that applicant state age or date of birth
  • Requirement that applicant produce proof of age in the form of a birth certificate or baptismal record
  • "How old are you?"
  • "When were you born?"
  • "When did you graduate high school?"
  • "When did you graduate college?"

Disabilities/Handicaps

The Rehabilitation Act of 1973 forbids employers from asking job applicants general questions about whether they are disabled or asking them about the nature and severity of their disabilities. An employer must be prepared to prove that any physical and mental requirements for a job are due to "business necessity" and the safe performance of the job.

Except in cases where undue hardship can be proven, employers must make "reasonable accommodations" for the physical and mental limitations of an employee or applicant. "Reasonable accommodation" includes alteration of duties, alteration of physical setting, and provision of aids.

Permissible Inquiries

  • Employers subject to the provisions of the Rehabilitation Act of 1973 may "invite" applicants to indicate how and to what extent they are disabled. The employer must indicate to applicants that:
    • Compliance with the invitation is voluntary.
    • The information is being sought only to remedy discrimination or to provide opportunities for the handicapped.
    • The information will be kept confidential.
    • Refusing to provide the information will not result in adverse treatment.
  • All applicants can be asked whether they are able to carry out the necessary job assignments and perform them in a safe manner. "Are you able to perform the essential functions of this job with or without reasonable accommodation?"

Inquiries That Must Be Avoided

  • "Do you have any disabilities?"
  • "Do you have a bad back?"
  • "How often do you visit the doctor?"
  • "Have you ever been denied health insurance?"
  • "Is your hearing good?"
  • "Can you read small print?"
  • "When were you in the hospital last?"

Sex/Gender

Permissible Inquiries

  • Inquiry as to sex or restriction of employment to one sex is permissible only where a bona fide occupational qualification exists. This BFOQ exception is interpreted very narrowly by the courts and the EEOC.
  • The burden of proof rests on the employer to prove that the BFOQ does exist and that all members of the affected class are incapable of performing the job.

Inquiries That Must Be Avoided

  • Sex of applicant
  • Any other inquiry that would indicate sex
  • Request of information from females that is not requested from males (such as marital or family status).
  • Sex does not become a BFOQ because a job involves physical labor (such as lifting) beyond the capacity of some women, nor can employment be restricted just because the job is traditionally labeled "men's work" or "women's work."
  • Sex cannot be used as a factor for determining whether an applicant will be satisfied in a particular job.
  • Questions concerning applicant's height or weight, unless you can prove that certain heights and/or weights are necessary requirements for the job to be performed
  • Sexual harassment is prohibited by Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
    • Submission to such conduct is made implicitly or explicitly a term of condition of employment;
    • Submission to or rejection of such conduct is used as the basis of employment decisions affecting that person; or
    • Such conduct substantially interferes with a person's performance or creates an intimidating, hostile, or offensive work environment.

Race or Color

Permissible Inquiries

  • General distinguishing physical characteristics, such as scars to be used for identification purposes
  • Race may be requested, preferably not on the employment application, for affirmative action purposes, but may not be used as an employment criterion.

Inquiries That Must Be Avoided

  • Applicant's race
  • Questions about color of applicant's skin, eyes, or hair; or other questions directly or indirectly indicating race or color

Birthplace

Permissible Inquiries

  • "After employment (if employed by the University), can you submit a birth certificate or other proof of U.S. citizenship?"

Inquiries That Must Be Avoided

  • Birthplace of applicant
  • Birthplace of applicant's parents, spouse, or other relatives
  • Requirements that the applicant submit a birth certificate or naturalization or baptismal record before employment
  • Any inquiry into natural origin

Citizenship

Permissible Inquiries

  • "Are you a citizen of the United States?
  • "If you are not a U.S. citizen, have you a legal right to remain permanently in the United States?"
  • "Do you intend to remain permanently in the U.S.?"
  • "If not a citizen, are you prevented from lawfully becoming employed because of visa or immigration status?"
  • Statement that, if hired, applicant may be required to submit proof of citizenship

Inquiries That Must Be Avoided

  • "Of what country are you a citizen?"
  • Whether the applicant or his or her parents or spouse are naturalized or native-born US citizens
  • Date when applicant or parents or spouse acquired U.S. citizenship
  • Requirement that applicant produce his or her naturalization papers
  • Whether applicant's parents or spouse are citizens of the U.S.

Ancestry or National Origin

Permissible Inquiries

  • Which language(s) applicant reads, speaks, or writes fluently (if another language is necessary to perform the job)

Inquiries That Must Be Avoided

  • Inquiries into applicant's lineage, ancestry, national origin, descent, birthplace, or native language
  • National origin of applicant's parents or spouse
  • "What is your nationality?"
  • "What language do you speak at home?"
  • "What's the origin of your name?"
  • "Where are your parents from?"

Religion

Permissible Inquiries

  • An applicant may be advised concerning normal hours and days of work required by the job to avoid possible conflict with religious or other personal convictions.
  • Except in cases where undue hardship can be proven, employers must make "reasonable accommodation" for religious practices of an applicant. Reasonable accommodation may include voluntary substitutes, flexible scheduling, lateral transfer, or change of a job assignment.

Inquiries That Must Be Avoided

  • Applicant's religious denominations or affiliation, church, parish, pastor, or religious holidays observed
  • Telling applicant that any particular religious groups are required to work on their religious holidays
  • "Are you a member of any religious group?"
  • "What church do you belong to?"
  • "Do your children go to Sunday school?"
  • "What do you do on Sundays?/Can you work on Sundays?"
  • "Is that a Jewish-sounding last name?"
  • Any other inquiry to indicate or identify religious denomination or customs

Address and Duration of Residence

Permissible Inquiries

  • Applicant's address
  • Inquiry into place and length of current and previous addresses; e.g., "How long have you been a resident of [city or state]?"

Inquiries That Must Be Avoided

  • Specific inquiry into foreign addresses that would indicate national origin
  • Names or relationships of persons with whom resides
  • Whether applicant owns or rents a home

Conviction, Arrest, and Court Record

Permissible Inquiries

  • Inquiry into actual convictions that relate reasonably to fitness to perform a particular job. (A conviction is a court ruling in which the party is found guilty as charged. An arrest is merely the apprehending or detaining of a person to answer to an alleged crime.)

Inquiries That Must Be Avoided

  • Any inquiry relating to arrests
  • Inquiry or check into a person's arrest, court, or conviction record if not substantially related to functions and responsibilities of the particular job in question

Relatives/Emergency Contact

Permissible Inquiries

  • Name of applicant's relatives already employed by the University
  • Name and addresses of parent or guardian of a minor applicant
  • Name and address of persons to be notified in case of accident or emergency

Inquiries That Must Be Avoided

  • Name and address of any relative of an adult applicant, other than those employed by the University
  • Name and address of relatives to be notified in case of accident or emergency