Guidance on Pre-Employment Inquiries
This article is the first of a three-part series regarding the various issues employers must consider when hiring and terminating employees. This series is intended to give employers a broad overview of the potential liabilities associated with hiring and terminating employees and suggest practical tips which would lessen the employer’s risk of a lawsuit and, if an employer does find itself in a lawsuit, provide the employer with strong affirmative defenses against frivolous claims.
When hiring new employees an employer will typically require applicants to fill out written applications and later conduct face to face interviews so the employer can establish two things: (1) whether the applicant can (or can be trained to) perform the basic duties of the job; and (2) whether the person will be a “good fit” within the existing workplace dynamic. However, pre-employment inquiries, whether asked in written applications or during an interview, can be a legal minefield for an employer to negotiate and employers should take precautions to help ensure these inquires do not run afoul with Washington State and federal discrimination laws.
Employers should also have a pre-screened list of questions to be ask during interviews. In developing this list, employers should be asking themselves two questions. First, what is the business necessity for the information sought by the question? Second, whether the answers to the questions, if used in the applicant selection process, could be interpreted as a mechanism to screen out members of a protected class? During the interview, employers should take caution in straying too far afield of this list of questions. When considering whether it will have an impact on a protected class, below is a list of common protected classes and suggestions on the types of questions and topics to avoid.
- Age: Avoid questions which may be perceived to indicate a preference for a person under age 40. However, asking for proof of true age and birthdate are permitted when the job requires someone over the age of 18.
- Arrests: Broad inquiries into previous arrest records can have been ruled to be have a disparate impact on minorities. Narrowly tailored questions for some positions, such as questions relating to crimes of dishonesty for persons applying for a position of trust or questions about DUI arrests when applicant would be driving company vehicles, may be appropriate. In either instance, refrain from asking about arrests which occurred more than ten years ago.
- Citizenship: Avoid questions regarding whether a person is a US Citizen. However, employers are permitted to ask whether the applicant can legally work in the US and require them to fill out the I-9 form. It is recommended that employers ask this question after offering the applicant the position and contingent on providing sufficient proof of eligibility to work in the United States.
- Family: A person’s family and children can often be a topic of conversation and applicants oftentimes will bring this topic up during an interview. However, employers should avoid inquiries regarding the applicant’s spouse, children, their spouse’s employment, their spouse’s salary, child care arrangements and the like because it could lead to an accusation that an employer discriminated against a person based on sex or marital status (i.e., the employer didn’t hire the person because they are married). If an applicant brings up these topics without prompting, politely re-direct them to the pre-planned topics of discussion for the interview and do not make any other inquires of this nature.
- Disability: Do not make inquiries about an applicant’s previous worker’s compensation claims, disabilities in general, or the use of sick leave at their previous employer. Likewise, questions about an applicant’s need for a reasonable accommodation should not be made unless and until the applicant asks for one, or discloses a disability which is not readily apparent and which may impact his or her ability to perform essential job tasks.
- Height and Weight: No inquiries on this subject are recommended unless the employer can make a strong showing of a bona fide occupational requirement for certain height/weight standards which are an essential function of the job (i.e., the need to work in small confined spaces).
- Marital Status: No inquiries at all about a person’s marital status, including whether a female applicant prefers to be addressed as Miss, Ms. or Mrs.
- National Origin: No inquiries about the person’s ancestry, place of birth, or national origin.
- Organizations: Do not request the applicant to list organizations, clubs, societies, and/or lodges which they belong to. However, if such information is volunteered by the applicant, the employer would likely be safe in asking conservatively phrased follow up questions, depending on the information volunteered and what the employer knows about the organization’s background. While this is a seemingly benign topic, employers could be accused of discrimination for a host of reasons tied to what these social groups support/oppose.
- Photographs: Do not request (or even make voluntary) that the applicant submit photos of themselves with their application.
- Pregnancy: Do not ask if the applicant is pregnant and if the applicant has plans to become pregnant in the future. Likewise, employers cannot exclude a person from a position because they believe that position is hazardous to a pregnant woman or her unborn child (i.e., working with hazardous chemicals). It is up to the applicant to decide what health/job related conditions are best for them.
- Religion: No questions about any facet of the applicant’s religion or their family’s religious background.
- Race/Color: No questions at all.
- Sex/Gender: No questions regarding gender may be asked. Inquiries regarding sex may be appropriate in some narrow specific job classifications, depending on the position sought to be filled.
The decision to hire (or not to hire) a person is a critical step in the employer/employee relationship. Employers must to have an understanding of the potential liability it may face when making these decisions and how to take steps to reduce the risk of being sued for discriminatory hiring practices. An employer with a basic understanding of the protected classes mentioned above, combined with a knowledge of common mistakes made by others, will go a long way towards lessening the risk of being found in violation of Washington State and federal discrimination statutes.