PRE-EMPLOYMENT INQUIRIES

Although it’s not binding on employers, a recent informal discussion letter from the EEOC about the use of criminal records as an employment-screening tool reminds us that employers must be careful when making certain inquiries during the pre-employment phase. For related guidance, see Recent Employment Law Cases and Hiring Practices.

Pre-employment interview tips from the EEOC

1. Ask questions related to the applicant’s qualifications. The purpose of an interview is to obtain sufficient job-related information to make an informed employment decision. Questions that aren’t job-related will be viewed as suspect, particularly if they appear to have an impact on a protected class.
2. Be careful about questions regarding outside activities. Questions about an applicant’s membership in clubs, organizations, or about hobbies, if not job related, can be problematic if they reveal information about protected characteristics.
3. Don’t ask about familial status or intentions. The EEOC will assume that the purpose of such inquiries is to screen out individuals who answer “incorrectly” and that the questions will have a discriminatory impact on women.
4. Avoid asking about child care arrangements. This is an area of questioning that might screen out female applicants. However, it’s entirely proper to present the specific job schedule and ask all applicants whether they can regularly comply with this schedule.
5. Stay away from physical and mental health inquiries. It is illegal to ask an applicant questions that relate to health or medical conditions, with one exception: If an applicant’s apparent disability legitimately calls into question his ability to perform a job, the person may be asked how he would perform the job, with or without a reasonable accommodation.
6. Age is not a permissible inquiry. The Age Discrimination in Employment Act makes it illegal to discriminate based on an applicant’s age. It’s best to avoid all inquiries, such as when an applicant attended or graduated from school, because such an inquiry might reveal her age.
7. Don’t ask about discrimination charges or lawsuits. It’s illegal to retaliate against a potential employee for complaining about discrimination. Failing to hire someone because of his answer to this question might imply that your company engages in unlawful retaliation.
8. Avoid asking about prior Workers’ Compensation claims. It’s illegal for an employer to discriminate against someone because of Workers Compensation claims that they have filed.
9. Arrest record inquiries are improper. The EEOC and courts have held that questions about arrest records can have an intimidating effect on members of certain minority groups and can’t be justified by business reasons. Although questions about an applicant’s criminal convictions are legal, take convictions into account in the hiring decision only if they’re related to the job in question.
10. Be careful with post-offer requests for information. Wait to obtain certain types of information until after you have made an offer of employment. For example, you may require pre-employment medical examinations post-offer, so long as you make this requirement of everyone in the same job classification. Ask for information for insurance and benefits purposes, which may include personal characteristics and familial status, only after hiring.
11. Be mindful of timing and consistency. Apply the same screening practices to all applicants for the same job to avoid claims of disparate treatment or impact.

Related reading: Hiring Employees and Employment Practices Liability.

Note: HR That Works members can use our post-offer fit-for-duty tools and watch Don’s webinar on Getting Pre-Hire Physicals Right. If you need assistance applying these practices to your hiring process, talk to an agent.

Article courtesy of Worklaw® Network firm Shawe Rosenthal.

Frequently Asked Questions

Can employers ask about criminal convictions?

Yes, employers may ask about convictions, but they should consider only convictions that are job-related and consistent with business necessity.

When can medical information be requested?

Medical or health-related inquiries are generally allowed only after a job offer is made and must be applied uniformly for the same job classification.

Is it illegal to ask about an applicant’s age?

Direct questions about age should be avoided because they can suggest age discrimination; use job-related qualifications instead.

Should I ask about childcare arrangements during interviews?

No; asking about childcare can disproportionately affect female applicants, though you may explain the job schedule and ask if applicants can meet it.