Employers face many restrictions regarding discrimination in hiring. One area that is potentially hazardous is that of pre-employment questioning. With different and sometimes contradictory interpretations by the courts, the Equal Employment Opportunity Commission, and other regulatory bodies, you might easily end up on tricky legal ground when interviewing job applicants. The important criterion is that unless a question relates directly to the job or specific needs, you normally cannot ask it. Under federal laws, there are no questions that are expressly prohibited, but the following questions would be wise to avoid asking.
Unacceptable: The national or religious origin of the applicant’s name... or if the name has been changed other than by marriage.
Acceptable: You may ask the applicant if they ever worked under a different name.
Unacceptable: The applicant’s age, date of birth, or the date of high school or college graduation.
Acceptable: You may ask if the applicant if over the age of 18 or 21, if job related (i.e. selling liquor).
Unacceptable: Whether the applicant, their spouse or parents are native-born or naturalized. In addition, you should not request dates of naturalization or application papers.
Acceptable: You may ask if the applicant is a U. S. citizen, or if they have the right to work in the U.S.
Unacceptable: Questions relating directly to race or color. Racial, national, or religious affiliation of schools attended.
Acceptable: You may ask the names of the schools attended, the highest level of education attained, or other training the applicant received if related to the job under consideration.
Unacceptable: Whether the applicant is married and the ages of their children, including details about childcare arrangements. You should also be careful not to ask different questions of males than you do of females.
Acceptable: You can ask the number of dependents and if they attend school.
Unacceptable: Military service record, such as type of discharge, and any foreign military service.
Acceptable: You can ask in which branch of the military they served, the type of education or training received, and the rank at discharge.
Unacceptable: Number and kinds of arrests or convictions unless related to job performance.
Acceptable: You can ask about convictions of misdemeanors or felonies if related to job performance.
Unacceptable: Certain questions about membership in organizations which might reveal religion, race, color or national origin of members.
Acceptable: You can ask about membership in union, professional, service, or trade organizations.
After the Interview: Keep in mind that casual conversations with job applicants should respect the guidelines set out here. A lunch or dinner with an applicant may be confused with a truly social situation and it is easy to make small talk about spouses, family, or religion. These exchanges could be misconstrued by the candidates as irrelevant, non-BFOQ (Bona Fide Occupational Qualifications) questions and represent ground for later disputes should they not get the job.
Following these guidelines becomes easier with practice. By focusing on the elements of BFOQ, which include education, experience, and skills, employers can avoid asking questions that are not directly related to making an objective employment decision.
