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 If the employer is following outdated hiring practices or is unaware of fair employment laws.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

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 Anti-Discrimination 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 Iím 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 donít 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 personís 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:

What Questions Should Employers Avoid?

EEOCís 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 spouseís 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 everyoneís 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:

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.