Federal anti-discrimination laws prohibit discrimination in hiring and every other aspect of employment. When an employer is covered by these laws, they are also prohibited from using a seemingly neutral policy that has a disproportionately negative effect on applicants in protected groups.
Although there are some exceptions, our laws generally encourage employers to make all employment decisions based on job-related factors alone. In order to ensure that employers do not unlawfully discriminate during the hiring process, the EEOC discourages or prohibits asking questions that are meant to elicit information that could be used to discriminate.
Here are six examples of pre-employment inquiries that are considered problematic or are prohibited altogether:
What is your race?
Sometimes, employers are trying to collect race information simply to track their progress on diversity goals, or even to use in an affirmative action program. However, when race information is collected, it should be done separately from the application process. For example, diversity information could be collected at the same time as the application, but it should be listed on a “tear-off” sheet that can be separated from the rest of the application during the consideration period.
Do you have a disability?
Specific questions about disability must wait until you have been given a conditional job offer. However, the employer may ask about a specific accommodation that may be necessary and, if you say that one would be needed, the employer can ask what that accommodation would be. Also, if you disclose a disability, the employer can ask limited questions about accommodations.
What the employer cannot do is ask questions about the nature or severity of the disability before making a job offer. At that point, the employer can ask disability-related questions and require a pre-hire medical exam as long as they ask all individuals applying for that job the same questions and require the same medical exam of everyone.
Are you planning on having children?
Historically, questions about marital status and children have been used to limit opportunities for women. According to the EEOC, it is clearly discriminatory to ask these questions of women but not men (or vice-versa). It is also clear that these questions could be used to unlawfully discriminate against women with children.
The EEOC regards asking these types of questions in a pre-employment context to be evidence of intent to discriminate:
- Are you married or planning to get married?
- How many children do you have and what are their ages?
- Are you pregnant?
- Are you planning to have more children?
- What are your child care arrangements?
- Is your spouse employed?
What year did you graduate?
This question seems innocent enough, but the answer could prompt illegal age discrimination. In general, employers shouldn’t ask you questions to elicit information about your age or membership in a protected group.
Do you attend religious services?
Unless you are applying for a job at a religious institution, your religious affiliation and beliefs are generally not a bona fide occupational qualification. Non-religious employers should not ask you about you our religion, practices, place of worship, days of worship, or religious holidays before making a conditional job offer. Once a job offer is on the table, the employer can ask questions to determine if you will need a religious accommodation.
Are you a U.S. citizen?
Asking you about your citizenship could open the door for discrimination based on your national origin. Employers may ask about your eligibility to work in the United States, but only after they have made a job offer. The E-Verify process, which verifies non-citizens’ permission to work, should never be initiated before you have accepted a job offer.