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

An employer, for example, generally may not ask applicants whether they will need reasonable accommodations for the job. An employer may not ask applicants how many sick days they took with a previous employer; this question directly relates to possible disabilities.

An employer may not ask applicants about their workers compensation history. A question of this nature is viewed as relating directly to the severity of the applicant’s impairments. An employer may not ask applicants about their current or prior lawful drug use. For example, an employer cannot ask an applicant, “What medications are you currently taking?”

An employer may ask applicants whether they can perform the essential functions of the job for which they are applying, with or without reasonable accommodation; or ask applicants to describe how they would perform any and all job functions, as long as all applicants in the job category are asked to do this.

When an employer reasonably believes that an applicant will be unable to perform a job function because of a known disability, the employer may ask the applicant to describe or demonstrate how the function would be performed.

If the applicant has an obvious disability or voluntarily discloses a hidden disability to the employer, the employer may ask the applicant whether reasonable accommodations are needed and, if so, of what types.

For example, an applicant for a receptionist’s position voluntarily discloses that he has diabetes and will need to take breaks to take his medication. The employer may ask the applicant questions about the reasonable accommodations he will need, such as how often he will need to take breaks and how long the breaks must be.

An employer should inform all applicants of the essential functions of the position and of the employer’s attendance requirements. The employer may then ask whether the applicant will be able to perform these functions and meet the attendance requirements. An employer may also ask about an applicant’s attendance record with a prior employer.

This question is not considered to be disability related, because there may be many reasons unrelated to disability that a person may not have met the attendance requirements of a previous job.

12. When was the last time you used illegal drugs?

An employer may ask applicants about current and prior illegal use of drugs. An individual who is currently using illegal drugs is not protected under the ADA. For example, an employer may ask the following of an applicant: “Do you currently use illegal drugs? Have you ever used illegal drugs? What illegal drugs have you used in the last six months?”

These questions are not likely to tell the employer anything about whether the applicant is addicted to drugs. On the other hand, questions that ask how frequently the applicant has used illegal drugs are likely to elicit information about whether the applicant was a past drug addict. An employer may not ask questions that refer to past drug addiction.

13. Do you drink alcoholic beverages?

An employer may ask applicants questions about their drinking habits, unless a particular question is likely to elicit information about alcoholism, which is a disability under the ADA. An employer may ask applicants whether they drink alcohol, or whether they have been convicted for driving under the influence of alcohol. These questions do not reveal whether someone has alcoholism.

On the other hand, questions about how much alcohol applicants drink or whether they have participated in an alcohol rehabilitation program are not permitted. Questions of this nature are likely to elicit information about whether applicants have alcoholism.

14. Have you ever undergone psychiatric evaluation?

This is not an appropriate question.

The EEOC enforcement guidance on psychiatric disabilities limits the questions asked of any applicant about any psychiatric disability.

Under the ADA, the term “psychiatric disability” includes mental impairments, such as any mental or psychological disorder including emotional or mental illness. It includes major depression, bipolar disorder, and anxiety disorders such as panic disorder, obsessive‑compulsive disorder, and post‑traumatic stress disorder. A mental impairment also includes schizophrenia and personality disorders.

As with physical disabilities, an employer is not permitted to ask applicants any questions that are likely to elicit information about a psychiatric disability. A limited exception comes into play when the employer reasonably believes that an applicant has a psychiatric disability for which the applicant will require accommodation.

Generally speaking, an employer can only reasonably believe that applicants will need accommodation if they disclose their psychiatric disability to the employer during the hiring process or if they tell the employer during the hiring process that such accommodation will be needed.

15. Are you dating anyone right now?

While this question may not be evidence of discrimination, interviewers should avoid questions of a personal nature. Personal questions are generally irrelevant to the hiring process, and may give rise to claims for invasion of privacy or sexual harassment.

There should be some direct correlation between the information requested and the applicant’s ability to perform the functions of the job. If there is no legitimate business purpose for a question, don’t ask it.

16. When did you graduate from high school?

This type of question can be considered an indirect inquiry as to an applicant’s age and may create an inference of age discrimination. While such a question does not inherently violate the Age Discrimination in Employment Act, a more appropriate approach is to simply ask the interviewees if they have a high school diploma or equivalent.

Further, an employer must consider whether a high school education is necessitated by the duties and functions of the position for which applicants are being interviewed. The United States Supreme Court has found an employer’s requirement of a high school education discriminatory where statistics showed that such a requirement operated to disqualify blacks at a substantially higher rate than whites and there was no evidence that the requirement was significantly related to successful job performance.

The standard applies to all groups protected under Title VII and to all questions related to educational achievement, if no job‑related requirement or business necessity exists. While an employer may generally inquire as to the applicant’s educational background, there must be some degree of relationship between the level of education required for the position and the job duties of the position.

17. Do you have any family members who work here now or who have worked here in the past?

Information about friends or relatives working for an employer is generally not relevant to an applicant’s competence.

Requesting such information may be unlawful if it creates a preference for relatives of current employees in the selection process and the composition of the present workforce is such that this preference reduces or eliminates employment opportunities for members of protected groups.

As a general rule, however, unless an adverse effect upon women or minorities can be shown, nepotism is not illegal.

18. What clubs or organizations do you belong to?

As phrased above, this question is unacceptable because it could be seen as seeking information that is not job‑related and which could relate to gender, national origin, religion or other status protected under Title VII.

It would be more appropriate to ask: “What professional or trade groups do you belong to that you consider relevant to your ability to perform this job?” This question would elicit similar information, but only to the extent that it is relevant to the job in question.

19. What is your maiden name?

This question could be seen as an inappropriate inquiry under Title VII because it indirectly asks a female applicant to disclose information regarding her marital status.

Questions about marital status are frequently used to discriminate against women and to deny opportunities for female applicants. If you need to contact a former employer, you may, however, ask all applicants if they have ever been known by any other name.

20. What is your race?

Title VII prohibits discrimination based on race and color. Again, pre‑employment inquires concerning protected status are not considered violations of the law in and of themselves. However, this inquiry directly asks an applicant to disclose information regarding a protected characteristic, and, unless otherwise explained, may constitute evidence of discrimination prohibited by Title VII.

An employer may legitimately obtain information needed to create and implement an affirmative action plan, or to meet other government recordkeeping requirements, or even for the employer’s own efforts to recruit minorities and/or women.

The information should be kept separate from other employee records to ensure that it is not used to discriminate in making personnel decisions. One means of collecting such data that has been approved by the courts is the use of a “tear‑off sheet,” which is an anonymous sheet that is separated from the application and used only for purposes unrelated to the selection decision.

Data on such matters as marital status, number and age of children, and similar issues, which could be used in a discriminatory manner in making employment decisions but which are necessary for insurance, reporting requirements, or other business purposes, can and should be obtained if a person has been hired, not by means of an application form or a pre‑employment interview.

It is reasonable to assume that all questions on an application form or any pre‑employment interview are for some purpose, and that selection or hiring decisions are made on the basis of the answers given.

When facing charges of discrimination, the employer bears the burden of proving that no answers to questions on application forms or in oral interviews are used in making hiring and placement decisions in a discriminatory manner prohibited by the law.

The employer must establish that the questions do not seek information other than that which is essential to evaluate an applicant’s qualifications for employment. It is, therefore, in an employer’s own self‑interest to carefully review all procedures used in screening applicants for employment, eliminating or altering any not justified by business necessity.

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.