Working With Employees - Portfolio Assignment

What You Can/Can’t Ask – Legal/Illegal Interview Questions

IMPORTANT – All settings, including informal gatherings with agency staff who are not members of the recruitment process , are considered to be part of the interview of candidate.

Everyone who will have contact with candidates should be made aware of areas of inquiry that are not appropriate or illegal questions that should not be asked in order to avoid non-compliance issues.

AREA OF

LEGAL

ILLEGAL

INQUIRY

Address/

CAN ASK:

IT IS ILLEGAL TO ASK/REQUEST:

Housing/Length

•

Place and length of current and previous address

•

Specific inquiry into foreign addresses that would

of Residence

(“How long have you lived in [city]”)?

indicate national origin

• For applicant's phone number or how s/he can be

• Names or relationship of persons with whom

reached

applicant resides

• Whether applicant rents or owns home

Age

BEFORE HIRING ONLY:

IT IS ILLEGAL TO ASK/REQUEST:

• If a minor, require proof of age in the form of a

• About the age or age group or date of birth of the

work permit or a certificate of age

applicant

• If age is a legal requirement, can ask “If hired, can

• Birth certificate or baptismal record before hiring

you furnish proof of age?” or a statement that hire

• Questions that would tend to identify persons

is subject to verification of age

between 40 and 60 years of age.

• Whether or not an applicant is younger than the

employer’s regular retirement age

AFTER HIRING ONLY:

• Require proof of age by birth certificate

Ancestry/

CAN ASK:

IT IS ILLEGAL TO ASK/REQUEST

Birthplace/

•

“After employment, can you submit a birth

•

If an applicant is native-born or naturalized

National Origin

certificate or other proof of U.S. citizenship or

•

The birthplace of applicant

other proof of the right to remain in or work in the

•

Questions which identify customs or denomination

U.S.?”

•

About birthplace of his/her parents, grandparents

•

About foreign language skills (reading, speaking,

and/or spouse or other relatives

and/or writing) if relevant to the job

• Require applicant submit a birth certificate or

Be sensitive to cultural differences

naturalization or baptismal record before

employment

•

Do not assume mispronunciation of English as a

•

About any other inquiry into national origin (for

lack of education

applicant or his or her spouse or parents; maiden

•

Do not interpret silence as inability or unwillingness

name of wife or mother)

•

First language

• Date of arrival in U.S.

•

Port of entry

Citizenship

CAN ASK:

IT IS ILLEGAL TO ASK/REQUEST

•

Whether a U.S. citizen

• “Of what country are you a citizen?”

•

If no, whether intends to become one

• If native born or naturalized (for applicant or his or

• If you are not a U.S. citizen, do you have the legal

her parents or spouse)

• Proof of citizenship before hiring

right to remain permanently in the U.S.?

• If not a citizen, are you prevented from lawfully

• Whether parents and/or spouse is native born or

becoming employed because of visa or immigration

naturalized

status?

• Date of citizenship (for applicant or his or her

• If spouse is a citizen

parents or spouse)

• Statement that, if hired, applicant may be required

to submit proof of citizenship.

AFTER HIRING ONLY:

•

Require proof of citizenship

Credit Rating

NO questions may be asked regarding credit.

You may not ask ANY questions regarding credit.

Criminal Record

CAN ASK:

IT IS ILLEGAL TO ASK/REQUEST

(Arrests and

• About actual convictions other than misdemeanors

•

To inquire about arrests without convictions

Convictions)

that relate reasonable to fitness to perform a

• Check into a person’s arrest, court, or conviction

particular job

record if not substantially related to functions and

• About convictions or imprisonment if crimes relate

•

responsibilities of the particular job in question.

to job duties and conviction or release from

About any involvement in demonstrations

imprisonment occurred within the last ten years

Disabilities

Accommodations for the interview must be provided.

AN EMPLOYER

(continued on

Be careful how applicants with disabilities are

The Rehabilitation Act of 1973 forbids employers from

next page)

asking job applicants general questions about whether

evaluated. Do not make judgments based on

they are disabled or asking them about the nature and

communication skills of people with hearing and

severity of their disabilities.

speech impairments.

To inquire for the purpose of determining applicant's

Don’t ask the applicant about what kind of

accommodation(s) he or she may need until after the

capability to perform the job. (Burden of proof for non-

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AREA OF

LEGAL

ILLEGAL

INQUIRY

Disabilities

discrimination lies with the employer.)

interviewer has established that the applicant is

(continued from

CAN ASK:

qualified for the job and is considering that person for

previous page

employment.

•

Whether or not applicant is able to carry out all

An employer must be prepared to prove that any

necessary job assignments/functions and perform

physical and mental requirements for a job are due to

them in a safe manner

“business necessity” and the safe performance of the

“How would you perform this particular task?”

job.

CAN INVITE:

•

Applicant to indicate how and to what extent they

Except in cases where undue hardship can be proven,

are disabled. Employer must indicate to applicants

employer must make “reasonable accommodations”

that (1) compliance with the invitation is voluntary;

for the physical and mental limitations of an employee

(2) information is being sought only to remedy

or applicant. Includes alteration of duties, alteration of

discrimination or provide opportunities for the

physical setting, and provision of aids.

disabled; (3) information will be kept confidential;

To exclude disabled applicants as a class on the basis

and (4) refusing to provide information will not

of their type of disability. (Each case must be

result in adverse treatment.

determined on an individual basis by law.)

Education

CAN ASK:

IT IS ILLEGAL TO ASK/REQUEST

• What academic, professional or vocational schools

• Specifically ask the nationality, racial or religious

attended

affiliation of schools attended

• About language skills such as reading and writing

•

To ask how foreign language ability was acquired

foreign languages

•

Office skills

Emergency

•

Name and address of persons to be notified in case

IT IS ILLEGAL TO ASK/REQUEST

notification

• Name and address of relatives to be notified in

of accident or emergency

case of accident or emergency

Experience

CAN ASK ABOUT:

• Applicant’s work experience, including names and

addresses of previous employers, dates of

employment, reasons for leaving, and salary

history

•

Other countries visited

Family/Relatives

CAN ASK:

IT IS ILLEGAL TO ASK/REQUEST

• If the spouse is employed at the company (CANNOT ASK NAME)

•

Name of a spouse

• Whether or not a spouse is employed

• Names of applicant’s relatives already employed by

•

How much a spouse earns

company

•

Whether or not a spouse is subject to transfer

•

Names and addresses of parents or guardian of

•

Questions about any relative of a candidate

minor applicants

• Names of relatives not working for the institution

AFTER HIRING ONLY:

• Name or address of any relative of adult applicant,

• To ask name, relationship and address of person to

other than those employed by institution

be notified in case of emergency

Gender/Sex

Inquiry as to sex or restriction of employment to one’s

IT IS ILLEGAL TO ASK/REQUEST

sex is permissible only where a bona fide occupational

•

Sex of applicant

qualification exists. Burden of proof is on the

•

Anything which would indicate gender unless job

employer to prove that the BFOQ does exist and that

related. (Only such jobs in education would be a

all members of the affected class are incapable of

full time locker room or restroom attendant.)

performing the job.

• Sex is not a BFOQ because a job involves physical

CAN INFORM:

labor beyond the capacity of some women, nor can

employment be restricted just because the job is

•

That the institution is an equal opportunity

traditionally labeled “men’s work” or “women’s

employer

work”

AFTER HIRING ONLY :

•

Sex cannot be used as a factor for determining

whether an applicant will be satisfied in a particular

•

Can ask about gender for affirmative action plan

job

Statistics as applicable

• Avoid questions concerning applicant’s height or

weight unless you can prove they are necessary

requirements for the job to be performed.

Health/Physical

May ask “Do you have any physical, mental or sensory

May NOT ask

Condition

handicaps which might affect work performance or

•

“Do you have any handicaps?” or questions that

which should be considered in job placement?”

divulge handicaps which do not relate to the job.

• Any questions regarding having received worker’s

compensation.

Marital/

BEFORE HIRING:

IT IS ILLEGAL TO ASK/REQUEST

Parental Status

•

Whether applicant can meet specified work

•

About marital status before hiring (married, single,

(continued on

schedules or has activities, commitments, or

divorced, engaged, etc.)

next page)

responsibilities that may hinder the meeting of

•

About the number and age of children

work attendance requirements. If such questions

•

Information on child-care arrangements

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AREA OF

LEGAL

ILLEGAL

INQUIRY

Marital/

are asked, they must be asked of both sexes.

•

About pregnancy and if applicant plans to have

Parental Status

•

Inquiries, made to both males and females, as to a

(more) children

(continued from

•

duration of stay on job or anticipated absences

Any question that directly or indirectly results in

previous page)

AFTER HIRING ONLY:

limitation of job opportunity in any way

• Married or single status for insurance and tax

purposes

Number and ages of dependents and age of spouse for

insurance and tax purposes

Military Service

CAN ASK:

IT IS ILLEGAL TO ASK ABOUT OR REQUEST

• Inquiry into service in U.S. armed forces

•

Military records

• Branch of service and rank attained

• Military service of any country other than the U.S

• Any education or job related experience as it

•

Type of discharge

relates to a particular job

• Require military discharge certificate after hiring

Miscellaneous

Notice to applicants that any misstatements or

omissions of material facts in the application may be

cause for dismissal

Name

For access purposes inquiry into whether the

IT IS ILLEGAL TO ASK/REQUEST

applicant's work records are under another name

• About the name that would indicate applicant’s

CAN ASK:

lineage, ancestry, national origin, or descent

•

If a woman is Miss, Mrs. or Ms.

•

Have you worked for this organization under a

•

Applicant to give maiden name or any previous

different name?

name s/he has used

• Is any additional information relative to change of

name, use of an assumed name or nickname

necessary to enable a check on your work and

educational record? If yes, please explain.

•

About names which have been changed by court

Organizations

CAN ASK:

IT IS ILLEGAL TO ASK/REQUEST

•

Organizational membership (professional, social,

• To request listing of all clubs applicant belongs to

etc.) so long as affiliation is not used to

or has belonged to

discriminate on the basis of race, religion, sex,

•

Names of organizations to which the applicant

national origin or ancestry

belongs if such information would indicate through

•

Offices held, if any

character or name the race, religion, color, or

ancestry of the membership

Other

CAN ASK:

IT IS ILLEGAL TO ASK/REQUEST

Qualifications

• About any area that has a direct reflection on the

• Any non job related inquiry that may present

job applied for

information permitting unlawful discrimination

Photographs

AFTER HIRING ONLY:

IT IS ILLEGAL TO ASK/REQUEST

•

May be required for identification purposes

• Photographs before hiring (either requirement or

request at his/her option)

• To take pictures of applicants during interviews

Physical Data

CAN REQUIRE:

IT IS ILLEGAL TO ASK/REQUEST

• Applicant to prove ability to do manual labor, lifting

• To ask height and weight, impairment or other non

and other physical requirements

specified job-related physical data

•

A physical examination

Race/Color

•

Can indicate that the agency is an equal opportunity

IT IS ILLEGAL TO ASK/REQUEST

(also see

•

Any inquiry that would indicate race and/or color

employer

Ancestry/

•

Color of applicant’s skin, eyes, hair

Birthplace/

AFTER HIRING ONLY:

•

Any other questions directly or indirectly relating

National Origin)

• Can ask race for affirmative action plan statistics

race or color

References

CAN ASK:

IT IS ILLEGAL TO ASK/REQUEST

•

By whom were you referred for a position here?

• To request references specifically from clergy or

•

Names of persons willing to provide professional

any other persons who might reflect race, color,

religion, sex, age, national origin, ancestry

and/or character references for applicant

• General and work references not relating to race,

color, religion, sex, age, national origin or ancestry

Religion/Creed

CAN ADVISE:

IT IS ILLEGAL TO ASK/REQUEST

• An applicant about normal hours and days of work

• Applicant’s religions denomination or affiliation,

required by the job to avoid possible conflict with

church, parish, pastor, or religious holidays

religions or other personal convictions

observed

• Applicants may not be told that any particular

religious groups are required to work on their

religious holidays.

• About applicant's religion or religious customs

and/or holidays

•

Recommendations from church officials

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AREA OF

LEGAL

ILLEGAL

INQUIRY

Work Schedules

• To ask willingness to work required work schedule

IT IS ILLEGAL TO ASK/REQUEST

• To ask willingness to work any particular religious

•

(choice of work days, shifts, etc.

To ask if applicant has military reservist obligations

holiday

You can discuss/ask:

• The duties and responsibilities of the job. Ask questions that are relevant to the job itself.

• The organization’s mission, programs, and achievements.

• Career possibilities and opportunities for growth, development, and advancement.

• Where the job is located, travel, mobility, equipment, and facilities available.

• The individual's qualifications, abilities, experience, education, and interests.

• What the person has done in previous job experience that makes them able to perform the job for which they have applied.
• What job related educational experience the applicant has that makes the individual able to do the job.

• What problems the applicant had on previous jobs, what he or she liked or disliked.

• If a topic (disability, religion, race, etc.) is brought up by the candidate you can discuss it - but it is not to be used as a reason for non-hire.

You MAY NOT discuss/ask:

• You may not ask questions about race, color, national origin, religion, sex, sexual orientation, disability, age, or ancestry.
• You may not ask in a series of interviews for a given position, questions directed at one sex and not of the other.

• You may not ask if a candidate has filed or has threatened to file discrimination charges.

• You may not ask questions about one's credit rating or request financial data.

• You may not ask for original name of an applicant whose name has been changed by court order or otherwise.

• You may ask for applicant's full name.

• You may also ask: "Have you ever worked for MTU under a different name? Is any additional information relative to a different name necessary to check your work record? If yes, explain."

• Do not ask applicant how long he/she intends to work.

• Do not ask general questions about high school or college degrees unless you can prove the educational degree inquired about is necessary to perform the job.
• Be professional and consistent in addressing men and women. If using first names, do so for all candidates.

• Avoid flirting, patronizing, or making sexual/ethnic jokes during the interview.

• In making a selection or recommendation, avoid making assumptions such as the following: o Supervisors or managers might prefer men or employees of certain ethnic/racial origins o Clients or customers might not want to deal with women or minorities

o Women's work might lack credibility

o The job might involve unusual working conditions that would disqualify the applicant

• Do not place undue emphasis on conditions of employment (such as travel, heavy lifting, long hours, etc.) in hope of discouraging the candidate and getting him or her to withdraw from the competition.

• If asked, give accurate information about the number of women or minority employees already in the organization. If a candidate asks, and if you don't have women or minorities in your own department, then you may arrange for the person to meet other women or minority staff members if asked to do so. Do not assume that this person will necessarily want to meet other women or minority employees.

• If you're going to discuss the town or city, mention everything and do not try to over-emphasize the town's aspects, such as the town is a good place for families and bring up children.

• In general, avoid references to a candidate's personal happiness (i.e., social and/or sexual). Don't assume that your town or city is not the place for a single person or for minorities.

• Obviously, do not indicate that you're interested in hiring a women or minority person as a statistic to improve your department's Affirmative Action/Equal Employment Opportunity profile. It's unlawful and an insult to apply different standards based on an applicant's sex or minority status.

• Treat the applicant like an adult; don't be patronizing.

Any inquiry should be avoided that, although not specifically listed among the above, is designed to elicit information as to race, color, ancestry, age, sex, religion, disability, or arrest and court record unless based upon a bona fide occupational qualification.

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