When interviewing a prospective job applicant, the employer should only ask questions which reasonably relate to the job in question. The employer should not request information that is not job-related and must not ask questions that might reveal an applicant’s protected status. If discriminatory questions are asked or discussed during an interview, the employer may have to later show that the information obtained was not used to discriminate. With that in mind, it is prudent to avoid certain inquiries completely. For example,
Questions a Potential Employer Should Never Ask
Employers should not inquire into the following areas:
- Age or date of birth;9
- Marital status (this includes whether an applicant is married, divorced, separated, widowed or in the process of having a marriage annulled or dissolved, or the identity of one’s current or former spouse, including whether the spouse is an employee of the employer);
- Sex, race, creed, color, religion, national origin, or sexual orientation;
- National Guard or Reserve status;10 and
- Date of military discharge.11
- Employers should train interviewers and recruiters to ask appropriate questions. Interviewers also should be well informed about the Americans with Disabilities Act if that Act is applicable. Inappropriate questions include:
- Do you have any children? Do you intend to have any?
- How many children do you have? How old are they? Who will care for them while you
- are at work?
- If you become pregnant, will you quit your job?
- Do you use birth control?
- Are you married? What does your husband/wife think of all this?
- Whom can we contact in case of an emergency?12
- Have you ever tested HIV positive?
- What does your husband/wife do? Is your husband/wife a union member? How likely is it that your husband/wife will accept a job in another city?
- How does your husband/wife feel about you making more money than he/she does?￼6
- How old are you?
- What year(s) did you graduate from (attend) high school? College?
- How would you feel about taking orders from someone younger than you?
- Have you ever been arrested?13
- Have you ever been treated for any of the following diseases or conditions?
- What languages are spoken in your home?
- Do you have a good credit rating? Have your wages ever been garnished?
- Do you have any physical impairments which would prevent you from performing the job for which you are applying?
- Are you now receiving or have you ever received workers’ compensation benefits?
- How much do you weigh? How tall are you?
- What is the lowest salary you will accept?
- Do you smoke?
- The Technical Assistance Manual on Title I of the Americans with Disabilities Act lists a number of additional prohibited questions,14 including:
- Have you ever been hospitalized? If so, for what condition?
- Have you ever been treated by a psychiatrist or psychologist? If so, for what condition?
- Have you ever been treated for any mental condition?
- Is there any health-related reason you may not be able to perform the job for which you are applying?
- How many days were you absent from work because of illness last year?
- Are you taking any prescribed drugs?
- Have you ever been treated for drug addiction or alcoholism?
Interviewers and recruiters also should be trained to avoid making any notations on application forms. Codes, numbers or cryptic shorthand notes on the application could be misinterpreted. Such promises may impair the employer’s right to terminate an individual. Interviewers should take detailed notes on a notepad separate from the application form and discard their notes after an applicant has been hired. Interviewers also should be trained to avoid making any oral or written representations to prospective candidates, e.g., “you’ll have this job until you retire.”
CREDITS: This post is an excerpt from An Employer’s Guide to Employment Law Issues in Minnesota, originally produced through a collaborative effort between the Minnesota Department of Employment and Economic Development and Lindquist & Vennum, P.L.L.P.
This post is part of a series of posts on hiring an employee in Minnesota.
9. It is recommended that employers do not inquire into employment history further back than the previous five years to avoid an indirect inquiry into age, although it is not legally prohibited. The Age Discrimination in Employment Act (ADEA) only prohibits employment discrimination based on old age (at least 40) and, therefore, does not prohibit employers from favoring relatively older individuals. See Federal Register, July 6, 2007 Volume 72, Number 129; General Dynamics Land Systems, Inc. v. Chine, 540 U.S. 581 (2004). But the Minnesota Human Rights Act (MHRA) protects individuals over the age of majority. Minn. Stat. § 363A.03. Covered employers must comply with both state and federal law.
10. 38 USC § 4311 (2007)
11. It is permissible, however, to ask the applicant whether he or she is a U.S. veteran, and the employer may use veteran status as a factor in hiring and may also give special consideration to Vietnam era veterans.
12. This question is acceptable after the applicant becomes an employee.
13. Questions about criminal convictions are permissible if reasonably related to the job for which the applicant is applying. Further, for certain jobs, background checks are required. See discussion under the heading “Background Checks.”
14. U.S. Department of Justice, The American with Disabilities Act: Title I Technical Assistance Manual § 5.5(b) (1992).