Knowing which questions not to ask during employee screening is as important as knowing which ones can be asked—because without careful preparation, one or more of the laws regarding nondiscrimination can inadvertently be broken. The general rule to be followed at all times is that all questions that are not demonstrably related to the job should be avoided. These include the following topics:
– Disabilities. The Americans with Disabilities Act, and many state laws, impose an outright ban on asking disability-related questions before a job offer is made. A disability-related question is any question that is likely to elicit information about a disability. Questions such as “Do you have any physical or mental disabilities?” “Is there any physical reason why you cannot do this job?” “Are you in good health?” “Are you pregnant?” “Do you currently take any medication?” and “Do you have any unusual physical characteristics such as birthmarks, scars, or tattoos?” should be avoided completely in terms of the ADA.
– Race or ethnic origin: Do not ask for the applicant’s race or ethnic origin, or the race or ethnic origin of anyone else.
– Religion: Questions about the applicant’s religion or any discussion of religion or religious practice or beliefs must be avoided. The only potential exception might be the handling of foodstuffs forbidden to certain religions, such as pork, where this forms an essential part of the job that cannot be accommodated without reasonable exception.
– Sex or sexual preference: No questions can be asked about the applicant’s sex, sexual preference, gender identification, or the sex or sexual preference of anyone else. Seemingly innocent questions such as “Who do you live with?” “Is [last name] your maiden name?” and “Do you prefer Miss, Ms. or Mrs.?” can all lead to trouble.
– Marital status: No questions can be asked about the applicant’s marital status or the marital status of anyone else.
– Children: There can be no questions about whether or not the applicant has children, or about anyone else’s children.
– Personal obligations: No questions can be asked about the applicant’s personal obligations, for example, whether the demands of caring for elderly parents or any other personal obligations are more important than job demands. Examples here include questions such as “Do you have any obligations at home that would keep you from working odd hours?” “Do you have childcare arrangements for non-routine hours (or weekends)?” “What are your childcare arrangements?” “Are you planning to have a child soon?” and “Will your husband (or wife) help with your home obligations?”
– Residence. Employers may not ask or discuss an applicant’s residential status (home ownership or rent), type of home, the sort of suburb in which the applicant lives etc.,—all to avoid any allegation that such information is being used in any way to determine race or socioeconomic background.
– Age. It is only permissible to ask the applicant to provide proof of age over 18 if required by law. Other questions can lead to claims under the Age Discrimination in Employment Act (ADEA). Avoid questions or even remarks such as “How old are you?” “You do not mind working with old (or young) folks do you?” “When were you born?” and “When did you graduate from high school (or college)?”
– Citizenship and nationality: Employers may not ask any questions concerning an applicant’s nationality or ethnic origin, or direct questions concerning citizenship. For example, employers may not ask “Are you an American citizen?” “Where were you born?” “Are you registered to vote?” and “Are you a naturalized citizen?” Even innocent sounding questions or remarks can cause trouble later. Avoid saying things like “What a lovely accent, where are you from?” “What an unusual surname, where are you from?” “Many of our employees are Spanish. Would you have any trouble fitting in?” and so on.
Other topics to avoid include questions about military discharge, previous sick days used in employment, requests for Social Security numbers (except when employment has been finalized), and, in some states, a candidate’s salary history. By being properly prepared, recruitment staff can ensure that the candidate selection process proceeds without a hitch, and that the company is not unnecessarily legally exposed to revenge lawsuits by rejected applicants.
