Truth and Consequences: The Quandary of Employment References for Dangerous Former Employees

Can you ask prospective employees if they have been arrested? If they have a high school diploma? What organizations they belong to?

Employment application forms and pre-employment interviews are the appropriate instruments for eliminating, at an early stage, unqualified or unsuitable persons from consideration for employment.

However, applications and interviews can also be used to restrict or deny employment opportunities for women and members of minority groups.

Court rulings and Equal Employment Opportunity Commission (EEOC) guidelines prohibit the use of all pre-employment inquiries that disproportionately screen out members of minority groups or members of one sex and are not valid predictors of successful job performance or which cannot be justified by “business necessity.”

The guiding principal behind any questions to a job applicant is this: Can the employer demonstrate a job-related necessity for asking the question? Both the intent behind the question and how the information is to be used by the employer are important in determining whether a question is an appropriate pre-employment inquiry. That is, an employer should consider whether the answers to the question, if used in making the selection, will adversely affect and screen out minorities or members of one sex.

Following are the first 10 of 20 representative questions, with a short analysis of each question to determine whether it is an unacceptable or acceptable question and why. The other 10 questions will be addressed in January. Note that these 20 questions are not an all-inclusive list.

1. How many children do you have?

This question is inappropriate for two reasons.

First, questions regarding marital status, number of children, and childcare arrangements are inappropriate because they may be seen as being based upon the applicant’s gender. Under Title VII of the Civil Rights Act, it is unlawful to deny a female applicant employment because she has children or is planning to have a child at some future date. Second, this question is an inappropriate way of asking about an otherwise appropriate subject: availability to work.

Questions asked to availability to work should be job-related. For example: What hours can you work? What shift(s) can you work? Can you work on weekends and/or holidays? Are there specific times that you cannot work? Do you have responsibilities other than work that will interfere with specific job requirements such as traveling?

2. What country are your parents from?

You may not ask applicants where they were born or where their parents were born. You may ask if an applicant is eligible to work in the United States. Under Title VII, pre-employment inquiries concerning national origin are not considered violations of the law in and of themselves.

However, inquiries that either directly or indirectly disclose such information, unless otherwise explained, may constitute evidence of discrimination, which is prohibited by Title VII. Some state employment-practice laws expressly prohibit inquiries on employment applications concerning the applicant’s national origin. In some states, it may also be considered illegal to seek related data, such as the birth, place of birth, or citizenship of parents, which could indirectly reveal national origin.

3. What is your native language?

When an English language skill is not a requirement of the work to be performed, and an employer uses an English language proficiency test or requires English language proficiency, an adverse effect upon a particular minority group may result, creating a violation of Title VII.

It is also inappropriate to inquire how an applicant acquired the ability to read, write, or speak a foreign language. However, if the job requires additional languages, an employer may legitimately inquire into languages the applicant speaks and writes fluently.

4. What is your height? What is your weight?

The EEOC and the courts have ruled minimum height and weight requirements to be illegal if they screen out a disproportionate number of minority group individuals or women, and if the employer cannot show that these standards are essential to the safe performance of a job in question.

5. Have you ever been arrested?

Questions relating to an applicant’s arrest records are improper, while questions of an applicant’s conviction record may be asked if they are job-related. The EEOC and many states prohibit the use of arrest records for employment decisions, because they are inherently biased against applicants in minority groups in other protected classes.

The EEOC has issued a Revised Policy Statement covering the use of conviction information by employers in making employment decisions:

First, the employer must establish a business necessity for use of an applicant’s conviction record in its employment decision. In establishing business necessity, the employer must consider three factors to justify use of a conviction record: (a) nature and gravity of the offense for which convicted; (b) amount of time that has elapsed since the applicant’s conviction and/or completion of sentence; and (c) the nature of the job in question as it relates to the nature of the offense committed.

Second, the EEOC’s Revised Policy Statement eliminated the existing requirement that employers consider the applicant’s prior employment history, along with rehabilitation efforts, if any. The Revised Policy Statement requires that the employer consider job-relatedness of the conviction, plus the lapse of time between the conviction and the current job-selection process.

6. Do you own your own home?

An interviewer should not ask if the applicant owns or rents a home or car, or if wages have been previously garnished, or if the applicant has ever declared bankruptcy, unless financial considerations exist for the job in question.

Any employer who relies on consumer credit reports in its employment process must comply with the Fair Credit Reporting Act of 1970 and the Consumer Credit Reporting Reform Act of 1996.

7. Did you serve in the military? What type of discharge did you receive?

You may ask whether or not the applicant has served in the military, period of service, rank at time of discharge, and type of training and work experience received while in the service. You may not ask what type of discharge the applicant received from a military service.

8. How old are you?

The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age with respect to individuals over the age of 40. Requests that applicants state their age may tend to deter older applicants, and may otherwise indicate discrimination based on age.

Consequently, employment application forms which request information such as age will be closely scrutinized to assure that the request is for permissible purpose and not for the wrongful purposes described by the ADEA.

Permissible purposes are limited to when age requirement or limit is a bona fide job application or is based on reasonable factors other than age. Under the EEOC’s Age Discrimination Interpretive Rules, requests for date of birth on the employment application are permissible, provided that an appropriate disclaimer is shown.

In addition, any recruiting effort that is age-biased—such as seeking “recent graduates” or any question during the interview process that deters employment because of age—is unlawful.

9. What church do you go to? What religion are you?

No job-related considerations would justify asking about religious beliefs or convictions unless your organization is a religious institution, in which case you may give preference to individuals of the same religion as the hiring organization or institution.

In addition, inquiries as to the applicant’s religion are also an inappropriate method of determining availability to work. Employers have an obligation to accommodate the religious beliefs of employees and/or applicants unless to do so would cause undue economic hardship.

The EEOC has determined that the use of pre-employment inquiries that determine an applicant’s availability have an exclusionary effect on employment opportunities of persons following certain religious practices.

Thus, questions relating to availability for work on Friday evenings, Saturdays, or holidays should not be asked unless an employer can show that the questions have not had an exclusionary effect on its employees or applicants who would need an accommodation for their religious practices, that the questions are otherwise justified, and that there are no alternative procedures which would have a lessor exclusionary effect (per EEOC Guidelines on Discrimination Because of Religion).

10. Are you a United States citizen?

This question is inappropriate as a pre-employment inquiry.

The EEOC Guidelines on Discrimination Because of National Origin indicate that consideration of an applicant’s citizenship may constitute evidence of discrimination on the basis of national origin.

The law protects all individuals, both citizens and non-citizens domiciled or residing in the United States, against discrimination on the basis of race, color, religion, sex or national origin.

Lawfully immigrated aliens, legally eligible to work, may not be discriminated against on the basis of their citizenship, except in the interest of national security, as determined under a United States statute or a presidential executive order regarding the particular position or premises in question.

About the author
Robert Palow is president of RP Consultants, a Placentia, CA based company that specializes in labor and employment practices. He has more than 30 years of management and legal experience in the human resource field.