Interviewing for a job can be an exciting experience. Applicants are usually willing to share a lot of information in the hopes of acquiring the job. However, this does not mean that an employer can ask you any question they want and require a response. This may be a form of discrimination. The Equal Employment Opportunity Commission (“EEOC”) created standards to guide what questions employers can ask and what questions constitute discrimination.
The EEOC aims to ensure that the intent behind the question and how the employer uses the response are job-related. Therefore, when questioning whether an inquiry could be considered discrimination, ask if it is job-related. This means that the question evaluates the applicant’s qualifications, skills, or overall competence for the job.
Further, state and federal equal employment laws prohibit the use of pre-employment inquiries that tend to remove members from the applicant pool based on a protected characteristic such as gender or race. The pre-screening questions must seek to determine qualifications, not serve as a method for discrimination.
There are a number of characteristics that an employer should not or cannot ask about when making hiring decisions. These characteristics include: race, height and weight, disability, marital status, religion, or specifics of finances. The EEOC recommends that employers avoid the following types of questions:
- Questions about race, religion, and ethnicity, examples include:
- Are you biracial?
- Which church do you attend?
- What language(s) do you speak at home?
- What is your native language?
- Do you practice a specific religion?
- What is your national origin?
- Where are your parents from?
- Questions about age, unless the employer needs to verify that applicants meet age-related legal requirements for the job.
- Questions about an applicant’s pregnancy or plans to start a family, such as:
- Are you pregnant?
- Do you plan to have children within the next year?
- How many children do you have?
- What are your child care arrangements?
- Questions about military or financial records. This includes questions such as:
- What type of discharge did you receive?
- Have you ever declared bankruptcy?
- Do you own your home?
Prohibitions on Questions Concerning Medical Information
To prevent discrimination, the EEOC also prohibits employers from asking questions about genetic information or disability, especially in a pre-offer setting. The applicable rules change after an employer makes an offer and the rules are generally more permissive towards obtaining medical information about the employee. However, prior to an offer, employers cannot ask about an applicant’s disability or questions likely to reveal a disability, these questions include:
- Do you have a disability?
- What medications are you currently taking?
- Have you filed any workers’ compensation claims?
- Have you ever been injured on the job?
Additionally, an employer cannot ask questions about an employee’s genetic information. The types of questions prohibited include:
- Have any of your close relatives had a heart attack or been diagnosed with a heart condition?
- Do mental health conditions such as bipolar disorder, depression or schizophrenia run in your family?
- Have you had genetic tests to determine whether you are at risk for cancer?
Despite these prohibitions, it might be necessary for the employer to know some variation of this information. For example, while an employer asking about height or weight may indicate discrimination, the employer can ask about an employee’s ability to lift heavy objects.
Additionally, an employer may ask an applicant if he will need a reasonable accommodation for a disability during the application process or on the job in certain situations. These situations include if the applicant possesses a disability which is obvious or previously disclosed. The employer can then ask if the applicant will need a change to the application process or work environment. Further, the employer may ask an applicant to voluntarily report for affirmative actions purposes. The employer may also ask the applicant to describe or demonstrate how she would perform certain tasks, without directly asking about a disability.
Get Legal Assistance for Hiring Discrimination
If you are uncomfortable by questions asked during the interview and suspect an employer did not hire you due to discrimination, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 to find out more.