Although many employers have put a freeze on hiring during these tough economic times, as we ease out of the current recession, many employers are moving from a hiring freeze mode to a hiring expansion mode. If you are one of those employers, it is a opportune time to remember that federal and state equal employment opportunity laws prohibit prospective employers from asking certain questions during the hiring process, whether on a job application or in an interview. Asking such questions can lead to potential liability for discriminatory hiring and to costly lawsuits. Below are twelve key subjects to avoid during the hiring process.
1. Have you ever been arrested?
The New York Human Rights Law (NYHRL), makes it unlawful for an employer to inquire about, or act adversely upon, a job applicant’s arrests or criminal accusations, if the applicant has been exonerated of the charges leading to the arrest, or if the charges were not pursued through the legal system.
An employer may lawfully ask if an applicant has previously been convicted. If this question is answered affirmatively, the employer may seek additional information about the conviction. However, under New York law, it is unlawful to deny employment because of a criminal conviction unless the employer can demonstrate, using a multi-factor analysis, either a direct relationship between the criminal offense and the employment sought or that granting the employment sought would create an unreasonable risk to the property or safety of others.
2. List all clubs, societies and organizations to which you belong.
Although this inquiry is commonly made by employers to obtain information that may reveal an applicant’s character, it should be avoided because the response may indirectly reveal an applicant’s membership in a protected class. Inquiries regarding professional associations or memberships, however, are acceptable if they are job-related.
3. When did you graduate?
Although information regarding an applicant’s academic, vocational or professional education may be relevant to an individual’s qualifications for a particular job, employers should not ask for dates of attendance or graduation, because the response may indirectly reveal an applicant’s age. The Age Discrimination in Employment Act (ADEA) and the NYHRL prohibit employers from discriminating on the basis of an individual’s age, including refusal to hire an applicant because of his/her age.
4. How would you feel about working for someone younger than you?
This question may be tempting when filling a position in a department run by a relatively young employee, and might seem acceptable because it is not asking directly about the candidate’s age, but it should still be avoided. Since the question goes indirectly to the applicant’s own age, it is impermissible under the ADEA and the NYHRL.
5. Do you rent or own your home?
This is rarely, if ever, relevant to the job in question, and questions such as this tend to have a disparate impact on minorities. Therefore, the best bet is to avoid the topic of home ownership altogether.
6. I see you worked at ABC Corporation…they are unionized, aren’t they?
This is too close to asking, “have you ever been a member of a union?” The Labor-Management Relations Act makes it illegal to discriminate on the basis of union membership
7. I see from your resume that you speak a number of languages. How did you learn to speak so many languages?
This inquiry may indirectly reveal the candidate’s national origin because it invites the employee to respond, for example, “I was born in Japan, and had to learn English when I moved to the U.S.”, or some other response revealing national origin. Because it is illegal under Title VII of the Civil Rights Act and the NYHRL to discriminate based on national origin, this type of question should not be asked.
8. Will you need a reasonable accommodation in this job?
Can you perform the essential functions of this job with or without reasonable accommodation?
Have you ever been on Workers' Compensation?
An employer should not make any of these inquiries on an application or during an interview because they are likely to elicit information about the applicant’s disabilities. Under the ADA and NYHRL, an employer may not ask any disability-related questions of a job applicant prior to making a conditional offer of employment. This prohibition is intended to ensure that an applicant's disability is not considered before the employer evaluates an applicant's general qualifications for the job. While an employer may ask an applicant if she can perform specific job functions, it may only ask an applicant about the need for accommodations during the pre-offer stage if she has an obvious disability or she voluntarily discloses a disability during the interview. The Equal Employment Opportunity Commission’s ADA Enforcement Guidance: Pre-Employment Disability-Related Questions and Medical Examinations provides a good resource for employers on this subject.
9. Do you use Miss? Mrs.? or Ms.? Are you married? Single? Divorced? Separated?
The New York Human Rights law prohibits all pre-employment inquiries into an applicant’s marital status. Such questions may also violate Title VII if the information gained is used to deny or limit employment for women. If this information is needed for business purposes (insurance, tax withholdings, etc.) it can be lawfully obtained after hiring.
10. Do you have a boyfriend? Or, do you have a girlfriend?
The question could elicit information about the applicant’s sexual orientation and should be avoided. The New York Human Rights Law prohibits an employer from discriminating against an applicant based on sexual orientation including homosexuality, bisexuality and asexuality.
11. You don’t do any crazy stuff like hang gliding, dirt biking, snowboarding or bungee jumping do you?
New York’s Off Duty Conduct Law (N.Y. Labor Law, Sec. 201-d, et seq.) prohibits an employer from refusing to hire an applicant because of that individual’s outside recreational activities, if those activities: are pursued off the employer’s premises; fall outside work hours; are pursued without the employer’s equipment; and are lawful. Whether the interviewer makes this inquiry to ascertain the likelihood of injury and resulting lost time, or simply to gauge the presence or absence of good judgment of the applicant, this line of questioning should be avoided. This is not to say that employers are prohibited from asking candidates what they do for fun or what their interests are. These are certainly appropriate interview topics. But employers should be wary about reacting negatively to the candidate's lawful recreational activities, should avoid questions that imply a negative view of certain types of activities, and cannot base a refusal to hire on such activity.
12. Do you smoke?
New York’s Off Duty Conduct Law also prohibits discrimination against applicants who use certain “consumable products.” For consumption to be covered by the law, it must be a lawful product, enjoyed outside work hours, off the employer’s premises and not involve the employer’s equipment or property. Smoking cigarettes, cigars or pipes is clearly covered by the statute and as a result employers should avoid asking applicants about such habits.
Employers wishing to obtain further guidance on pre-employment inquiries in New York should also review the guidelines issued by the New York State Division of Human Rights.