Permissible Pre-Employment Queries


By Cynthia M Piccolo

Throughout history, there are many examples of human beings' poor treatment of others. In the employment sense, the main issue of poor treatment is discrimination. Obviously, discrimination is not confined to the dusty pages of history books. It is still necessary to prevent some people from dismissing individuals based on stereotypical and/or unfair notions of ability and suitability; therefore, rules have been put in place to protect potential employees.


But a side effect of these rules is that people become unable, and/or afraid, to show genuine interest or ask some relevant questions, for fear these questions will be misconstrued as discrimination. And, sometimes, these rules prevent the interviewer from exploring issues that could reasonably be deciding factors in selecting the person who is best for your company, hospital, or school.

In the United States, pre-employment queries are determined on several levels. As Art Bell, PhD puts it in Update on Legal and Illegal Interview Questions, "There is no single federal, state, or local agency or court that defines for all cases which interview questions are legal or illegal. Instead, a plethora of court rulings, legislative decisions, agency regulations, and constitutional laws combine to produce the often confusing and frequently changing list of what you can and can't ask a job applicant."

Overall, the Equal Employment Opportunity Commission (EEOC) enforces the federal laws pertaining to discrimination, including: Title VII of the Civil Rights Act (CRA); Equal Pay Act of 1963; Age Discrimination in Employment Act of 1967 (ADEA); Rehabilitation Act of 1973, Sections 501 and 505; Titles I and V of the Americans with Disabilities Act of 1990 (ADA); Civil Rights Act of 1991 (CRA 1991).

Here is a list of questions, which cannot be asked (or can be asked only under certain circumstances during a job interview.)

1. Query Regarding: Age

Federal law (the ADEA) prohibits discrimination against people who are older than 40. However, employers may legally ask, "Are you 18 years of age or older?" or "Do you meet the minimum age requirement for work set by law in this area (i.e., the employer's municipality or state)?"

The ADEA does not prohibit compulsory retirement at 65.

When age is "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise," you can be asked (and so can be discriminated against). An obvious example is a casting director wanting an actor of a certain age.

2. Query Regarding: Race/Ethnic Origin/Place of Origin/Citizenship/Ancestry/Color

If a job requires that a person be fluent in English, you can be asked about your fluency in spoken/written English.

You can be asked if you can provide verification of your legal right to work in the United States (i.e., citizenship, green card).

You can be asked about other languages, e.g., "Do you have speaking ability in another language that may be helpful in your job?"

And in cases where race or national origin is "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise," you can be asked (and so can be discriminated against). Similar to the age question, an obvious example is a casting director wanting an actor of a certain racial/ethnic background.

3. Query Regarding: Photo

Obviously anyone applying for a position in the performance arts will have to provide a photo.

After being hired, it is permissible to ask for a photo.

4. Query Regarding: Height/Weight

Height/weight can be asked (and so can be discriminated against), if these are "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." A good example is that of a pilot who must be tall enough to comfortably reach the aircraft's controls. (Here's an unusual example: we once had a client hospital overseas that was unable to employ a very overweight NNICU nurse – whom they very much wanted to hire – because their NNICU was so small that any nurse, respiratory therapist, etc., who was not slim to average build had great difficulty fitting between the incubators and life support equipment in the cramped space!)

5. Query Regarding: Religion/Creed

An employer can ask a question such as "Do you have commitments that will prevent you from working all shifts?" or "Do you anticipate any absences from work on a regular basis?" (And thus you can be asked to explain the circumstances under which these occur.)

Employees' religious needs must be accommodated unless it causes "undue hardship" to the employer. Undue hardship is defined as an action that would entail significant difficulty or expense. What constitutes undue hardship varies according to the employer's financial resources, size, etc.

Additionally, the rules against employment discrimination do not apply to a religious association, educational institution, etc., regarding the requirements that a member of a specific faith carry on their association's work. Thus, in cases where religion "is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise," you can be asked (and so can be discriminated against).

6. Query Regarding: Sex

And in cases where sex "is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise," you can be asked (and so can be discriminated against).

7. Query Regarding: Sexual Orientation

Check within your own state/municipality regarding civil rights legislation, labor legislation, or governor's executive orders. The EEOC notes that "many [not all] states and municipalities have also enacted protection against discrimination and harassment based on sexual orientation." How many? According to a June 27, 2002 press release by Senator Dianne Feinstein (D-Calif.), "the Executive Branch [Executive Order 13087, issued May 28, 1998, for Federal civilian employment], 294 Fortune 500 companies, 23 State governments and 252 local governments" have prohibited workplace discrimination based on sexual orientation. Since anti-discrimination laws pertaining to sexual orientation are not universal in the US, the EEOC does not enforce the protections that prohibit discrimination and harassment based on sexual orientation.

8. Query Regarding: Family/Marital Status

Questions such as "Are you married?" should not be asked, as they are seen as discriminating against women (but not against men – perhaps an illustration of who gets the short end of the stick in marriage). However, if relevant to the job, you can be asked what hours you can work, if you are available for overtime, and/or if you can travel or relocate. You can also be asked if you have commitments or responsibilities that will prevent you from being available for all shifts.

Once given a conditional offer of employment, you can be asked whether you have had previous names in order to confirm credentials or previously held jobs.

Next-of-kin queries can be asked after beginning employment.

9. Query Regarding: Children/Pregnancy

An employer can show any applicant a list of duties involved in the position and ask if s/he is capable of performing them all. An employer can also make statements about job requirements (e.g., the ability to lift/move patients or equipment) and ask if the applicant can perform these functions.

10. Query Regarding: Disability – Physical or Psychological

Some disabilities will be obvious when a person is interviewed.

An applicant may also discuss their disability at an interview. If so, the employer can ask non-gratuitous questions about how s/he can perform job functions and whether reasonable accommodations will be needed.

An employer can also show any applicant a list of duties involved in the position and ask if the applicant is capable of performing them all. An employer can also make statements about job requirements (e.g., the ability to lift/move patients or equipment) and ask if the applicant can perform these tasks.

An employer can also ask about a candidate's attendance record in previous jobs, since poor attendance can result from factors other than disability.

An employer cannot require medical exams or make inquiries about whether a person has a disability or about the nature or severity of the disability, unless these are shown to be "job-related and consistent with business necessity."

Similarly, an employer cannot use employment tests or other such criteria to screen out individuals with disabilities unless the test is "job-related for the position in question and is consistent with business necessity."

An employer can discriminate against a disabled person who is considered a "significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." And an employer can discriminate against a disabled person if accommodations would result in undue hardship. Undue hardship means an action that would entail significant difficulty or expense. What constitutes undue hardship varies according to the employer's financial resources, size, etc.

Note: The ADA's disability definition does not include homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments or other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance-use disorders resulting from current illegal use of drugs.

11. Query Regarding: Disability – Substance Abuse/Drug Testing

An applicant or employee who is "currently engaging in the illegal use of drugs" is not considered to be a "qualified individual with a disability" by the ADA. However, an individual who has completed or is currently in supervised drug rehab and is not using drugs is considered, by the ADA, to be a "qualified individual with a disability."

An employer is allowed to make a rule barring the employment of someone who currently and knowingly uses or possesses a controlled substance (i.e., other than under appropriate circumstances, such as the use of controlled substances under the supervision of a healthcare professional) unless the rule is adopted or applied with the intent to discriminate in other areas, e.g., race.

According to the ADA, drug testing for illegal drugs is not a medical test, so this form of testing is allowed.

12. Query Regarding: Criminal Record

You can be asked, "Have you ever been convicted of a criminal offence for which a pardon has not been granted?"

You cannot be asked about pardoned offences, arrest record, or jail time.

General considerations:

Who is an employer?

  • The ADEA states that an employer is a person, corporation, etc., that "has 20 or more employees"; the ADA says an employer is a person, corporation, etc., that "has 15 or more employees"; and the CRA calls an employer a person, corporation, etc., that has 25 or more employees.

    Small businesses are not considered employers, therefore, they may be able to discriminate (depending on state/local laws), presumably because these companies could reasonably claim undue hardship when trying to make accommodations.

  • According to the CRA, it is not illegal to refuse employment to someone if the requirement is "imposed in the interest of the national security of the United States."

  • Are you a communist? Too bad. You can be discriminated against.

    When you are applying for work abroad.

    The rules are different when you apply for work abroad. Other countries have different attitudes and policies and do not necessarily follow the same practices of what is and is not a permissible or reasonable question. For example, many Americans work in Saudi Arabia, including healthcare professionals at hospitals accredited by the Joint Commission International division of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). Applicants for positions at these facilities are asked their age, weight, marital status, number of children, and religion. They have to fill in medical questionnaires and submit photos. They also require a complete physical examination before relocating. Look at the situation from the employer's perspective: the employers are paying a fee to a recruitment agency; they are paying to import a worker, thus covering airfare, accommodations, healthcare, and salary, and, in the case of married-status contracts, airfare, accommodations, and healthcare for a spouse and dependent children (as well as education for those children). The proposition is extremely expensive for the foreign employer, so they have to reduce the chances of an individual not being able to complete their contract because of preexisting health conditions or other problems.

    What to do if you are asked something not askable.

    So what if you are asked something like: "Where are you from?" Don't jump to conclusions. Remember: not everyone is seeking to discriminate against you. The interviewer may be trying to break the ice. Or they may be trying to get a picture of you as a person outside of your career to see how well you would fit into their team. Some people are simply interested. Maybe the person who asks you if you are from a certain foreign country is asking because they used to live there themselves and want to reminisce for a moment. Maybe their mother's best friend has the same accent as you have. And some people are new at interviewing and/or don't know what is appropriate.

    How you react depends on many factors, personal and situational. Are you of a group that is often discriminated against? Have you applied unsuccessfully for several jobs you felt you were qualified for? Is the interview going well or is there tension? Are you interested in the job? (If you confront the person about an inappropriate question, you may lose your chance at the job. If you lose your chance at the job, you may want to bring an accusation before the EEOC or before a Fair Employment Practice Agency in your state/municipality – do you want to do this? Perhaps you do.) Of course, if you really feel the employer has a lot of issues (e.g., sexual orientation, race, or children) you may not want to work there anyway. What is your feeling about the interviewer – do you sense that s/he is genuinely interested in you, or does s/he seem to have ulterior motives with the questions?

    And what is being asked? There are overt questions and underlying questions. For example, if someone asks you about marital status – are they asking just because they noticed an interesting ring on your finger? And what do they consider the best answer? Would they prefer a married person, since there will be another person to share household responsibilities, thus freeing you up to do overtime? Or would they prefer a single person who doesn't have a family and so could do more overtime?

    If someone asks something inappropriate, one option is to play innocent: "I'm not sure how to answer your question. Could you please explain how it's relevant to the position I'm applying for?" Keep in mind, such a response may very well cause tension. In response, the employer may drop the question – or they may be able to show how the question is appropriate and relates to a reasonable qualification. For example, if it is a question about ethnicity, they may suspect that your ethnic background is the same as a large proportion of their patients, which is beneficial, and want to confirm this. Or they may be trying to see how you would react to a patient saying something inappropriate.

    Another option is to address the hidden question, e.g. if asked a question about having children, and you do, you could state that your family life has never interfered with your ability to do your job. Or if you don't have children, you could state that, at this point in your life, children are not in your plans. Do not lie. Lying won't help you.

    You could also turn the question back on the interviewer. If they ask whether you have children, you could respond and ask whether they have any. This tactic will certainly gain rapport points if the interviewer is trying to assess your personality.

    The information provided in this article is for informational purposes only and should not be considered legal advice.

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