Do you know what’s acceptable and what’s forbidden during screening and interviewing processes?
Too many people, both interviewers and interviewees, are unaware of basic standards the law imposes and enforces regarding recruiting, hiring and onboarding employees. It’s imperative that human resource professionals on behalf of their businesses, as well as potential employees, are aware of the very thin line between what can and cannot be addressed during the screening and interviewing processes. Both employer and employee should be knowledgeable and protected to avoid legal ramifications.
By now, it’s often common sense that many of the various laws, rules, codes and regulations imposed by the government protect the public from discrimination and prohibit employers from asking certain questions with respect to age, race, gender, disability, ethnicity, nationality, religion, criminal record, marital status and sexual preference. What doesn’t seem to be common knowledge is what should and should not be asked during interviewing.
A short list of governmental regulations would include, amongst others, the following:
- The Wages and the Fair Labor Standards Act (FLSA)
- The Family and Medical Leave Act (FMLA)
- Title VII of the Civil Rights Act of 1964
- The Equal Pay Act of 1963
- The Age Discrimination in Employment Act of 1967
- Section 503 of the Rehabilitation Act of 1973
- The Vietnam Era Veterans’ Readjustment Assistance Act of 1974
- Title I and Title V of the Americans with Disabilities Act of 1990 (ADA)
- Title II of the Genetic Information Nondiscrimination Act of 2008
Even knowing the intricate details of the items on this list, and that there are obvious questions that are off limits during screening and interviewing, not everyone knows where the line is drawn. This guideline should help clear the air a bit.
Name: An employer cannot ask about a maiden name or a prior name changed by Court Order, however, a potential candidate can be asked if any additional information relative to a name change is necessary to verify work records or a background check.
Address: Asking a candidate about any foreign addresses, details regarding who the potential employee resides with, or whether he or she rents or owns, isn’t permissible. Inquiring as to whether or not he or she has a legal right to be employed in the United States is, as well as location and length of time the candidate has resided at his or her current residence.
Arrest records: An employer can’t legally ask about an arrest record, but can ask if the candidate has been convicted of a crime in general. Stay away from specifics.
Marital status: Although asking if an applicant is married seems harmless, an employer can’t ask this question without potential consequences because it reveals spousal status and could disclose sexual orientation.
Age: Asking how long a candidate has been working in general isn’t considered a lawfully acceptable question because it may reveal the age of the candidate. What can be asked is how long a candidate has been employed in a specific industry.
Religious holidays: An interviewer cannot ask an applicant about his or her religious holiday requests, because it requires him or her to disclose their religion. Employers, however, may ask if he or she is available to work on religious holidays in general, not specific ones.
National origin: Asking what country a candidate is from is forbidden. Requiring a candidate to disclose his or her national origin opens the company up to racial or nationality discrimination claims.
Disability: Direct questions inquiring about specific disabilities are off-limits, such as doctor care or treatments, confinement to healthcare facilities, and just about anything specific to require transparency of disabilities. An employer may ask if the candidate can perform the skills and job-related functions required of the job generally, but the employer should err on the side of caution when it comes to specific questions with respect to healthcare matters.
Alcohol: Any questions about drinking habits, even socially, are prohibited under the Americans with Disabilities Act. Just don’t do it.
Military: Asking what type of discharge a veteran received is also prohibited. An interviewer may inquire as to the education and training received while serving in the military without concern, but should not address discharge.
Political beliefs: No questions regarding political beliefs or affiliations should be asked of potential employees. This violates the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, and Section 107 of the Civil Service Law.
Transgender: It’s better off not to refer to men and women whatsoever, especially with respect to clothing and salaries, which is common. Dress codes can be created, without apprehension, as long as it is not gender-specific.
Pregnancy: Whether a candidate is or intends to become pregnant is definitely off limits. Whether his or her spouse is, or intends to be, can also be construed as a discriminatory avenue, as well as disclosing his or her sexual preference. No potential employee should be asked about pregnancy history, status or plans.
In the event you aren’t sure if you should inquire about an applicant’s status or history, or you yourself are asked a question that you feel is inappropriate or in violation of your rights, do not partake in the transaction. Don’t ask or don’t answer. Address the inquisition with your local Equal Employment Opportunity Commission office and if the EEOC is not enforcing the particular law you may have almost violated, or was a victim of, the EEOC will refer you to the appropriate enforcement agency.
Although this information is certainly not intended to provide legal advice, or encompassing all to-dos and no-no’s, hopefully it’s a start. Let’s protect our businesses and ourselves.
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