Prohibited Job Application & Interview Questions

Allowed Job Interview & Application Questions

Under various Federal (and Texas) laws, it is illegal for an employer to discriminate against a job applicant because of his or her race, color, sex (including pregnancy), national origin, age (40 or older), veteran’s status, disability or genetic information. While these restrictions would seem to prohibit a fairly limited set of questions, court rulings have served to broaden the scope of the law significantly. Consequently, employers must exercise great care or risk (intentionally or unintentionally) running afoul of these laws during the job application and interview process.  Here, we consider “What can be asked on a job application and interview and which questions should be avoided.

Questioner’s Intent

An employer’s main concern when considering someone for a job should be to determine whether or not the applicant is suitable for the position.  The application and interview process provides the employer an opportunity to ask the candidate about relevant skills, work experiences, employment history and references.  If questions asked are designed to solicit information that could be used in a discriminatory way, even if the questions themselves do not seem, at face value, to be discriminatory, the employer could be in violation and is at risk of being sued.

Additionally, courts have ruled that a question that, in practice,

  • screens out a disproportionate number of candidates in a protected group,
  • is not a valid predictor of future successful performance on the job, and
  • cannot be justified as a business necessity,

is discriminatory and may not be asked. So even the absence of discriminatory intent does not make a question acceptable to ask, if it adversely impacts a protected group.

Bona Fide Occupational Qualification

An exception exists to the law when a particular “religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation” of a business.  The employer must prove, however that the class(es) discriminated against would be unable to do the job and that the bona fide occupational qualification is reasonably necessary to the operation of the business.  (There is a “religious organization” exception in Title VII which permits these groups to give preference to job applicants of the same religion, so these groups do not have to prove a BFOQ.)

Prohibited Questions

No questions should be asked regarding an applicant’s race, age, religion, creed, sex, marital status, financial status, or pregnancy unless there is a BFOQ. Any BFOQ question must be asked to all applicants alike.  It is best not to ask about an applicant’s criminal history on a job application or during an interview, but instead to wait until the candidate is being considered for hire.  At that time, a background check should be used to determine the extent of any criminal history.

Questions About Disabilities

The only question that may be asked concerning an individual’s physical condition is “Are you able to perform the essential functions of the job with or without reasonable accommodation?”  You may describe the specific job task that is required (e.g. lifting 25 lbs.) and ask if the applicant is able to perform this function with or without reasonable accommodation.

Regional Prohibitions

While this has not reached Texas yet, in an attempt to address pay inequity, some northeastern municipalities have banned employers from asking applicants about their salary history on applications and in interviews.  Employers are also restricted from asking current and former employers about an applicant’s salary.

Allowed Interview Questions

It is acceptable to ask, with the caveats described, questions about:

  • An applicant’s work performed at previous employers including duties, responsibilities, accomplishments, titles, promotions, and experience.
  • Military service including education, training, or work experience gained while in the service (but be aware of various state limitations on military service).
  • An applicant’s ability to read, write, and speak languages that are required for the job they will perform.
  • The candidate’s education or training, if it is required for a specific job.
  • The applicant’s membership in professional organizations.
  • A candidate’s availability for evening and/or weekend work (provided the query is made to men and women alike, and that the person now doing the job works evenings and/or weekends, or that an overall change in shift is being implemented. Note that if an applicant’s religious observance makes them unavailable for weekend work, you may not use this in a hiring decision and must make “reasonable accommodation” for a religious observance unless it causes “undue hardship.”)
  • Expected duration in the position or anticipated absences (must be asked of both men and women alike.)
  • Whether there is the applicant eligible to work in the United States, and if the applicant can show proof of this after being hired.

This is certainly not an exhaustive list of the all the prohibited and allowed job application and interview questions and is merely meant to provide an overview of legal restrictions.  If your business or organization would like to learn more about best practices for applicant screening and interviewing, you may want to consider Simon | Paschal PLLC’s onsite HR training, Legally Speaking.   Our employment lawyers cover important HR issues that can help you avoid lawsuits and have a happier, more productive workplace.  Both half and full-day sessions are available and we can customize the program to fit your needs.  The attorneys at Simon | Paschal PLLC are your resource for employment and business law matters.

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