Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 19, 2020

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Employers must give careful consideration to questions used in job applications. In some cases, certain questions are legal, in others they are not. For employers and potential employees, it’s important to become familiar with the types of questions that can (and cannot) be asked during the hiring process. This will help employer’s avoid a lawsuit and potential employees will have the information needed to determine if he or she is the victim of employment discrimination.

Age and Date of Birth

Generally, age is considered not to be relevant in most hiring decisions, and therefore, date-of-birth questions are improper. Both employers and employees should be aware that age is a very sensitive pre-employment question. As such, the Age Discrimination in Employment Act protects employees 40 years of age and above. It is permissible to ask an applicant to state his or her age if he or she is less than 18. If an employer needs the date of birth for internal reasons, i.e., computations with respect to a pension or profit-sharing plan, this information can be obtained after the person is hired.

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Gender, Race, Religion and National Origin

Generally, questions should not be asked about gender, race, religion, and national origin, either on employment applications or during job interviews. The requirements that an applicant furnish a picture has been held to help support a claim for race discrimination when it was demonstrated that an employer never hired a minority applicant, the theory being that the picture was required so that an employer would remember which applicants were members of minority groups.

A sexual harassment plaintiff might similarly argue that the employer pre-screened applicants for physical attractiveness. Ordinarily, Title VII of the Civil Rights Act of 1964 requires that employers make reasonable accommodations for their employees’ religious practices, thus eliminating the necessity for asking whether an applicant’s religious beliefs would prohibit his or her working at certain times and on certain days in most situations. It is important to note that Title VII does not prohibit discrimination on the basis of sexual orientation. However, some states and cities have laws that prohibit discrimination in employment on the basis of sexual orientation. California, Hawaii, Wisconsin and Chicago are just a few.

Physical Traits and Disabilities

The Americans with Disabilities Act (ADA) prohibits general inquiries about disabilities, health problems, and medical conditions. Height and weight requirements have been found to violate the law in situations where such requirements have eliminated disproportionate numbers of female, Asian-American, and Spanish-surnamed applicants, when in such cases, the employer could not show that the physical standards were directly related to job performance.

Education Information

If a job does not require a particular level of education, it is improper to ask questions about an applicant’s educational background. Applicants can be asked about educational background, schools attended, degrees earned, and vocational training when the performance of a job requires a particular level of education. For example, inquiring into the English language proficiency and educational background of a secretarial candidate is proper, while the same inquiry would likely be improper for a janitorial applicant. The U.S. Equal Employment Opportunity Commission (EEOC) and some courts have looked closely at an employer’s educational requirements to determine whether they are being used to exclude minorities who, generally speaking, have obtained lesser levels of education.

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Arrests and Criminal Convictions

The EEOC takes the position that questions concerning arrests are improper unless the applicant is being considered for a security-sensitive job and the employer does an investigation to determine, in effect, whether the applicant was likely to have committed the crime for which he or she was arrested. The EEOC also says that questions about an applicant’s conviction record are improper unless the employer can show that the conviction is in some way related to the position being applied for. The EEOC takes these positions because of statistics that show that ethnic minorities are arrested and convicted at considerably higher rates than non-minorities.

Credit History and Garnishment

Questions concerning whether an applicant has been the subject of garnishment proceedings should be eliminated from employment applications. Using the garnishment history of an applicant in determining whether he or she will be hired is probably discriminatory, because more minority members have their wages garnished than do whites. Questions concerning credit rating or credit references have been held to be discriminatory against minorities and women. Questions concerning whether an applicant owns a home have been held to be improper as being discriminatory against minority members, since a greater number of minority members do not own their own homes.

Citizenship Questions

The anti-discrimination provision of the Immigration Reform and Control Act provides that an employer cannot discriminate because an applicant is not a U.S. citizen. Therefore, in order to avoid charges of discrimination under this Act, citizenship questions should probably be deleted from employment applications. The Form I-9 is the appropriate place to determine citizenship status instead of the employment application.

Employers are allowed to ask if an applicant is legally qualified to work in the United States. This refers to non-citizens in the United States on valid work visas and who can legally be hired to work in either a specific industry or for any type of work, depending on the type of visa.

For information on visas and immigration statuses for work purposes, go to the Immigration Law section of FreeAdvice.

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Smoking or Drug Use

It is likely permissible to ask an applicant if he or she uses drugs or smokes. The application also affords an employer the opportunity to obtain the applicant’s agreement to be bound by the employer’s drug and smoking policies or to submit to drug testing.  However, it would be wise to check with an employment law attorney regarding these inquiries and requirements, as they may implicate the employee’s or applicant’s right to privacy. It is important to note that California has an express constitutional right to privacy that is considered even more protective than the federal right to privacy.

Invasions of privacy such as taking a polygraph test are prohibited by statute, but there are exceptions to this. Some potential employees may be required to take a physical examination, only if all employees are required to be physically examined. In these cases, the records are kept confidential and the information obtained is not used to discriminate on the basis of disability.

What are some other questions employers can or cannot ask during the hiring process?

It is improper and illegal to ask whether an applicant is a member of a union. Questions concerning whether an applicant has friends or relatives working for the employer may be improper, if the employer gives a preference to such applicants. While questions about military experience or training are permissible, questions concerning the type of discharge received by an applicant have been held to be improper because a high proportion of other than honorable discharges are given to minorities. The Americans with Disabilities Act prohibits general inquiries about disabilities, health problems, and medical conditions.