Pre-Employment Inquiries - Discrimination Pitfalls - Idaho Commission on Human Rights

Pre-Employment Inquiries - Discrimination Pitfalls

Can An Employer Be Practicing Illegal Job Discrimination Or Be Inviting Discrimination Complaints And Not Even Know It?

Yes. If the employer is following outdated hiring practices or is unaware of fair employment laws.

Both Idaho and federal law make it illegal to discriminate in employment on the basis of race, color, sex, religion, national origin, age (40+) and disability. The prohibition against discrimination applies to labor unions and employment agencies, even if the agencies don’t receive fees for services.

Why Is The Law Involved In The Actual Inquiries Made During The Hiring Process?

EEOC states in its 1981 Pre-Employment Inquiries Guidelines that“employment application forms and pre-employment interviews have traditionally been instruments for eliminating, at an early state, ‘unsuited’ or ‘unqualified’ persons from consideration for employment and often have been used in such a way as to restrict or deny employment opportunities for women and members of minority groups.”

Complaints alleging that an employer failed to hire a person due to discrimination account for about 10% of the cases filed with the IHRC each year.

What Should A Person Look For When Analyzing Application Forms And Pre-Employment Inquiries For Compatibility With Employment Discrimination Laws?

Don't make inquiries into areas that will send up red flags. Don't ask applicants to state their race, sex, age, color, national origin, religious preference or medical problems. Before including questions on an application or in an interview session, ask yourself: Does this information have an adverse impact on any protected group? Is there a business necessity behind the question?

ADVERSE IMPACT. Some selection procedures have an adverse impact against members of a particular race, sex, or ethnic group. For example, asking a job candidate’s height on an application form and failing to hire persons who are not at least 5’9” tall has an adverse impact against women, Asian Americans and Hispanics. This means that a disproportionately higher percentage of applicants from these groups will be screened out because they are too short.
BUSINESS NECESSITY. Is the information needed in order to determine if the person can really do the job? Can only those who are 5’9” perform the job in a safe and efficient manner? An employer who uses height as a screening device must be prepared to defend this practice by stating the business necessity of the height policy. Following are two examples of this defense:
- Successful business necessity defense for height policy––An airline has an opening for a pilot for its fleet of jumbo jets. It can show that the aircraft can be safely and efficiently operated only by persons who can easily reach all of the controls in the cockpit. Passenger safety is the prime concern of the airline, and pilots must be a certain height to operate the aircraft. In this case, height is a valid requirement, and using it does not violate the employment discrimination laws.
- Unsuccessful business necessity defense for height policy––A school district has an opening for a vice-principal in charge of discipline. Its height requirement is really a test of whether the candidate is an “authority figure”. The school argues that tall people are seen as power figures. While hiring a vice– principal who is an “authority figure” may be necessary for the safe and efficient operation of the school, there are many other ways to predict if a candidate will be respected which are far less discriminatory than the height test. In this case, height is not a valid requirement for the job, and using it would constitute illegal discrimination.

What About Requirements Federal Contractors Are Under To Document The Race, Color, Religion, Sex, Or National Origin Of Applicants? How Can An Employer Collect This Data Without Violating Anit-Discriminatin Laws?

Federal contractors required to keep applicant flow data as a part of their affirmative action plans should ask job applicants to fill out this data on a form that will be separated from the application. It is advisable to state on the form that the information is voluntary and requested in order to collect applicant flow statistics as required by the federal government, and will not be kept with the application nor used in the hiring process.

Isn't It True That Often An Interviewer Asks Personal Questions Merely To “Break The Ice” And Relax The Candidate?

Yes, but try asking about the weather instead. Even if you don't use the personal information, just having asked it could lead an unsuccessful candidate to believe he or she failed to be hired for discriminatory reasons.

What About Information Needed For Insurance And Pension Programs Connected With Employment?

It is often necessary to collect information from employees about their sex, age, and marital status in order to complete paperwork for health insurance and retirement programs. This information has nothing to do with a person's qualifications for a job. Obtain this data after the selection process is complete and the candidate has been hired.

How Should A Job Candidate Respond When An Employer Asks An Unacceptable Question?

First of all, don't lie. Presenting false information during the application process is a serious matter even when the question should not be asked, and has no legally valid place in the hiring process. Some candidates respond to an unacceptable question by skirting the question and responding to what they believe the non-discriminatory intent of the question might be. For instance, some candidates when asked if they have small children respond by saying, “I imagine you want to know if I will be punctual and I can tell you that I’m a person who has always been on time to work and I've had almost no absenteeism”. It is tricky to handle such questions, and most candidates just answer them honestly and with an outward smile, in order not to offend the interviewer.

Some Employment Agencies Ask Questions About Spouses, Spouse's Occupation, Make, Year And Model Of Car, Home Ownership, Savings Accounts And Banking Accounts. Is This Discrimination?

If any of the information is used in making job referrals, it could be illegal discrimination. Some employment agencies mistakenly combine forms used for referrals with forms used to determine whether or not to grant credit to their clients. These forms should be separate.

Don't Government Officials And The Courts Recognize That An Employer Needs Some Information In Order To Select The Right Person For A Job?

Yes. Remember the government is an employer, too. In 1978, the EEOC, the Civil Service Commission, the Department of Justice, and the OFCCP jointly issued Uniform Guidelines on Employee Selection Procedures. They can be found in any library which carries the Code of Federal Regulations. If you don’t have access to the guidelines, or the time to study them, a good general rule is to ask only job-related questions. Know ahead of time what the job content will be, and then ask about the person’s skill and experience in performing those tasks. For example: Have you ever used a word processor before? What training have you had in repairing heavy equipment? What skills do you have that will help you to deal well with the public? Also, ask basically the same questions of all your candidates.

Questions About Knowledge, Skill And Ability Are All Well And Good, But Employers Need To Make Judgements About Whether Candidates Will Fit Into The Company And Have Work Habits And Standards Acceptable To Them. How Can They Discover These Things Without Asking "Unacceptable" Questions?

Perhaps the best way to answer this is to give examples of situations which often give interviewers problems. In each, the interviewer has legitimate concerns. The problem is that so often the concerns are addressed in the wrong way. For example:

YOU WANT TO KNOW if the candidate will remain with the company for a reasonable period of time. (This will vary from employer to employer, and may be as short as a three-month season for a fruit inspector to five years for a management trainee.)

Don’t assume that women will be less stable or that a minority group member will be apt to move. Avoid questions about marital status, age of children, child-bearing plans, spouse’s career plans.
Do ask all candidates if there is any reason, barring unforeseen events, why they will not stay with the company for a certain period of time. It is usually a good idea to explain the company’s needs for long-term employees to the job seeker. This approach is recommended even when a candidate is obviously pregnant. Many women today are successfully combining parenting with a career. If the woman states that she plans to stay with the company, believe her.
An employer with a legitimate business need to control turnover is not violating discrimination laws by refusing to hire all persons who do not pledge their intent to remain with the company for a certain period of time.

YOU WANT TO KNOW if the employee will be prone to excessive absenteeism or tardiness.

Don’t assume that women and minorities will have higher absenteeism and/or tardiness than others This is stereotyped thinking about groups. Don’t ask numbers and ages of children or child care arrangements.
Do ask all candidates if there is any reason why, if hired, the company could not expect them to be punctual and have good attendance. Ask for history of these matters at places of prior employment.
An employer with a legitimate business need to control tardiness and excessive absenteeism is not violating the law if it refuses to hire all persons who have poor attendance records.

YOU WANT TO KNOW about the character of the job candidate.

Don’t ask candidates about their religion or frequency of attendance at religious meetings. Don’t specifically ask for recommendations from religious leaders or ask candidates if they used church job referral services. Don’t ask candidates if they are comfortable working with persons of a particular religion or if they ever drink alcohol. Don’t ask about arrest records.
Do ask all candidates if they can live up to the strict code of professional behavior the company maintains both while employees are in the office and when they are in the field. Ask for character references and check them out. It is all right to ask if candidates have been convicted of any crime and, if so, what, when, and where. A company is not violating the law if it screens out applicants with a verifiable and pertinent record of dishonesty. In fairness to the candidates, the employer should consider the kind of violation and how long ago it occurred before disqualifying a candidate for this reason. For instance, a reckless driving conviction is not job-related for a bank teller opening, but is for a position as a school bus driver. In addition, if the conviction occurred several years ago and the person has had no subsequent convictions, for most jobs the candidate would be considered a good risk.

YOU WANT TO KNOW about the job candidate’s health or health history.

Don’t ask candidates if they have ever filed a worker’s compensation claim. This inquiry is a violation of the Americans With Disabilities Act.
Don’t ask candidates about the existence, nature or severity of a disability which is likely to elicit information about a disability. In other words, avoid an inquiry so closely related to disability that the individual’s response is likely to elicit information about a disability. Even when an individual voluntarily discloses a disability, an employer may not make follow-up inquiries concerning the disability at the pre-offer stage.
It is okay to ask about a job candidate’s ability to perform job-related functions, with or without reasonable accommodation. It is also okay to request a job candidate to describe or demonstrate how they would perform job-related functions so long as all candidates are requested to do so.
The following are examples of prohibited disability-related inquiries:

Do you have AIDS? Do you have asthma?
Do you have a disability which would interfere with your ability to perform the job?
How many days were you sick last year?
Have you ever filed for workers’ compensation?
Have you ever been treated for alcohol problems?
Have you ever been treated for mental health problems?
What prescription drugs are you currently taking?

The following are examples of inquiries which are not disability related and are, therefore, okay to ask:

Can you perform the functions of this job (essential and/or marginal), with or without reasonable accommodation?
Please describe/demonstrate how you would perform these functions (essential and/or marginal).
Do you have a cold? Have you ever tried Tylenol for fever?
Can you meet the attendance requirements of this job? How many days did you take leave last year?
Do you illegally use drugs? Have you used illegal drugs in the last two years?
Do you have the required licenses to perform this job?

What Questions Should Employers Avoid?

EEOC’s Office of Public Affairs, in August of 1981, made the following list of "high risk" questions and explained why they should be avoided.

High Risk Questions: You May Be Discriminating Against This Group
Height/Weight: Impacts women and some minorities
Pregnancy: Impacts women
Marital Status: Impacts women
Number of Childern: Impacts women
Child Care Arrangements: Impacts women
Proficiency in English (where not needed on the job): Impacts minorities
Educational requirements (where the degree is not related to success on the job): Impacts minorities
Arrest records (without proof of business reasons for knowing this information): Impacts minorities
Conviction records (should not be an absolute bar to employment unless number, nature, and recentness make the candidate unsuitable): Impacts minorities
Type of discharge from military service (not to be confused with military service record, which may be asked): Impacts minorities
Age--persons protected by law are 40 and older (very rarely may be used, as in hiring a young actor): Impacts older workers
Citizenship (may ask if the person is legally eligible to work in the U.S. and can furnish such proof if hired): Impacts persons based on national origin
Economic status (questions such as home and car ownership, credit ratings, and spouse’s job and title): Impacts minorities
Availability to work week-ends or holidays (employers must accommodate the religious beliefs of a candidate or employee unless it creates an undue hardship on the employer): Impacts person with religious bans against working on their Sabbath
Friends or relatives working for the company (where a preference is given in hiring those with contacts already employed by the company) Nepotism policies are not illegal unless they impact only one sex; for example, hiring husbands of female employees, but not wives of male employees.: Impacts minorities and women if workforce is predominantly male and white

Requiring candidates to "list any injuries, handicaps or disabilities" must be avoided because it might eliminate a candidate who is perfectly capable of performing a job, even though he or she is disabled. It is all right to ask all applicants about their ability to perform specific job-related tasks. It is also all right to test for the ability to meet minimum physical standards if the standards are necessary, all applicants are tested, reasonable accommodations are made for the disabled, and everyone’s results are given the same consideration. Remember: employers have a duty to make reasonable accommodations for disabled workers. They should feel free, therefore, to ask disabled applicants what accommodations, if any, they will need to do the essential functions of the job.

How Can An Employer Make Good Hiring Decisions If So Many Questions Are Unacceptable?

Follow these three rules of thumb:

Ask only for information you intend to use in making a hiring decision.
Know how you will use the information to make that decision.
Recognize that it is difficult to defend the practice of seeking information which is not used.

RETALIATION

Retaliation against an individual who has engaged in a protected activity is unlawful. "Protected activity" means opposing conduct which a person, in good faith, reasonably believes to be unlawful under the anti-discrimination statutes or participating in Commission proceedings, which are set up for the enforcement of the anti-discrimination statutes.