Answer:

There are many myths and much misinformation around what is permitted by a company in the hiring process. I am not claiming to be a guru in this area, but have received a good bit of training as a hiring manager and a recruiter. The specific areas I will address are more common. For some of the rarer or obscure ones I would suggest consulting an employment lawyer or a member of SHRM (Society for Human Resource Management. If I have missed the mark on any of these I will make a correction if someone will let me know.

Permissible:

Age Question: It is permissible to ask for age on an application or in an interview. But there should be no reason to do so and the risk of potential age discrimination charges around this question makes it very unwise to do so.

Reference Checks: Reference checks are permissible and questions are only limited by what is illegal under state or federal law, i.e. race, gender, etc. The information provided by many employers has loosened over the last 20 years or so. Most large companies will still refer you to an HR department who will typically only verify whether a person was employed and dates of employment. There is an outside chance you can get a title out of the reference check. Although companies may have a stated policy about managers not providing reference checks and referring inquiries to HR this is routinely not subscribed to. Also reference checks are covered under the Fair Credit Reporting Act. As with credit applications you are entitled to see the results of the checks (without names of person(s) providing them) and to dispute them.

Bona Fide Occupational Qualification Exemption (BFOQ): This is a rarely used one and can be applied only in cases involving gender, religion or national origin. It is also very narrowly interpreted. A couple of examples are a religious organization requiring that particular religious belief and a male locker room requiring a male attendant. (No comments please; I have already heard them all.)

Testing: This is generally permissible if it can be shown to be applicable to the job and the testing “validity” has been independently verified. It also cannot be discriminatory (intentional or not) towards a class of people. Finally the test needs to be applied across the board, to all candidates.

Not Permissible:

Criminal Charges or Convictions: I start with this one because it is actually a murky area. Generally the Fed has found this to be permissible though some states regulate, or even ban, this question unless it has direct application to the job. The bottom line is if you don’t have any arrest record answer the question. It won’t hurt you.

Disabilities: It is against the law to ask about disabilities during the interview. An employer may ask if a potential employee can do the job with or without accommodations. An employer may ask if accommodations are needed to complete the interview or demonstration process. An employer may ask about “reasonable” accommodations to perform the job if the disability is obvious and would potentially require accommodation, if the candidate voluntarily discloses they have a disability or if they voluntarily disclose they need accommodation. There is also a requirement on any employer with 15 or more employees they provide “reasonable” accommodation. This whole law is open to some interpretation and much of the time is based on financial requirements of the employer. It is one thing to require someone to buy a different desk and another to require them to put in an elevator.

Age, gender, ethnicity, and religion: No further explanation is needed.

Hiring based on government quotas: Many times recruiters will hear a statement similar to this: “I need more ethnic minorities, more women, etc. in my organization”. While this may be said with the best intentions it is illegal to recruit, interview and hire based on these qualifications.

Questions around marriage or family: These are not permitted questions and typically would not even have relevance to the job.

Workman’s compensation history: This is not a question you would typically see at the level of my readership. But I have seen it on applications for blue-collar workers. I relate this one to all of you as you might be in a situation where a company is hiring blue collar and you see this on an application. It is a big no-no.

Transportation: This is not a question that typically comes at this level but it can. They may ask you if you can get to work. But that is the limit. I have only seen this brought up twice in all my years of recruiting. The one time was around a sales position with a major firm. The candidate they wanted to hire had verifiable documentation he had blown out all his sales quotas in the past. He had a sales territory in the past that was 200 miles plus in radius. Upon a background check they found his driver’s license had been suspended for DUI. I told them it was not permissible to discriminate based on a suspended driver’s license. Plus with the reason being a DUI they were potentially entering another trouble area. Besides, the person had adopted to exceed his quotas. Why wouldn’t you want to hire them?

Pregnancy: A company cannot discriminate based on pregnancy. This is covered under the Civil Rights Act, as an amendment in 1978.

Polygraphs: It is against the law to administer pre-employment polygraphs, except around positions involving certain types of security and financial transactions.

Childcare: Again this question is one not seen too often at the level of this readership but can occur. 99% of the time it is asked of women, which is discriminatory in itself. But an employer may not ask this period.

I am not trying to start a crusade with this information, only inform. You may need to get a job not become the next Ralph Nader. But knowledge of these areas could also benefit you.

My opinion is most companies ask these questions based on ignorance and poor procedures, not discrimination. So don’t go in with your sword prepared to battle. If asked one of these questions, it appears innocently asked and won’t do you any damage in responding then do so and then nicely ask if they were aware this was illegal. Also state you are only asking to help them avoid getting in trouble in the future.

Here’s Wishing You Terrific Hunting,

Bill

About the Author

Bill Gaffney has had 17 years of experience as an executive recruiter and a career coach. He can be reached at 937-567-5267 or wmgaffney@prodigy.net.