On a job application or during an interview, no member of an organization can legally ask any questions that can be used to discriminate against the applicant, unless the questions are bona fide occupational qualifications. A bona fide occupational qualification (BFOQ) is one that may be discriminatory but is reasonably necessary to normal operation of a particular organization. For example, a BFOQ for a job teaching Jewish religion classes could require that the person selected be a practicing Jew, but it could not be a BFOQ to teach math or English in a Jewish school.
The Exhibit lists some information on what generally can and cannot be asked during the selection process. However, the questions are based on Federal law, and some states do have different laws that may apply.
It may be hard to memorize the list, but to keep it simple, the two major rules of thumb to follow are:
- Every question asked should be job-related. If the question is not job related, there is a chance that it is discriminatory, so don’t ask it. When developing questions, you should have a purpose for using the information. Only ask questions you plan to use in the selection process.
- Any general question that you ask should be asked of all candidates.
You now have two options. You can read the pre-employment Exhibit first, then take the self-test application, or you can scroll down and take the self-test.
Exhibit • Pre–employment
|Topic||Generally Acceptable||Generally Unacceptable or Risky
|Name||Current legal name and whether the candidate has ever worked under a different name||Maiden name or whether the person has ever changed his or her name|
|Address||Current residence||Whether the candidate owns or rents his or her home|
|Age||Only whether the candidate’s age is within a certain range (if required for a particular job); for example, an employee may need to be 21 to serve alcoholic beverages||How old are you?
What is your date of birth?
Can you provide a birth certificate? How much longer do you plan to work before retiring?
|Sex||Candidate to indicate sex on an application only if sex is a BFOQ||Candidate’s sexual preference, orientation or gender identity|
|Marital and Family Status||None||Specific questions about marital status or any question regarding children or other family issues|
|National Origin, Citizenship, or Race||Whether the candidate is legally eligible to work in the United States, and whether the candidate can provide proof of status if hired||Specific questions about national origin, citizenship, or race|
|Language||What languages the candidate speaks and/ or writes; can ask candidate to identify specific language(s) if these are BFOQs||What language the candidate speaks when not on the job or how the candidate learned the language|
|Criminal Record||Whether the candidate has been convicted of a felony; if the answer is yes, can ask other information about the conviction if the conviction is job-related||Whether the candidate has ever been arrested (an arrest does not prove guilt), or charged with a crime|
|Height and Weight||Generally none unless a BFOQ||Candidate’s height or weight if these are not BFOQs|
|Religion||None unless a BFOQ||Candidate’s religious preference, affiliation, or denomination if not a BFOQ|
|Education and Work Experience||Academic degrees or other professional credentials if information that is job-related||For information that is not job-related|
|References||Names of people who can verify applicant’s training and experience||A reference from a religious leader|
|Military Record||Information about candidate’s military service||Dates and conditions of discharge from the military; draft classification; National Guard or reserve unit of candidate|
|Organizations||About membership in job-related organizations, such as unions or professional or trade associations||About membership in any non-job-related organization|
|Disabilities||Are you capable of performing the essential tasks of the job with or without an accommodation?||General questions about disabilities or medical condition|
|Past Salary||Can ask is they had a prior paying job||Now illegal because it tends to discriminate against women with lower pay than men|
APPLYING THE CONCEPT (Self-test)
Legal or Illegal Questions
Identify whether each question can or cannot be asked during a job interview:
A. Legal (can ask)
B. Illegal (cannot ask during pre-employment)
____ 1. What languages do you speak?
____ 2. Are you married or single?
____ 3. I have two children; do you have any kids?
____ 4. So, you want to be a truck driver. Are you a member of the Teamsters Union representing truck drivers?
____ 5. Are you straight or a homosexual?
____6. Have you ever belonged to any type of union?
____ 7. So, you want to be a server in the bar. What is your date of birth?
____ 8. Have you been arrested for stealing on the job?
____ 9. So, you want to deliver pizza. Do you own your own car?
____ 10. Do you have any form of disability?
____ 11. Are you a member of the Knights of Columbus?
____ 12. Can you prove you are legally eligible to work in America?
____ 13. Are you currently a member of the military reserve?
____ 14. What is your religion?
____ 15. How much do you weigh?
APPLYING THE CONCEPT (Answers)
As you read the answers, you may realize that the use of words often make the difference between a legal and illegal question. The law is technical in terms of vocabulary, and that is part of the reason we have so many lawyers and lawsuits. Thus, word choice is important.
a 1. Legal (can ask). It’s OK to ask what languages an applicant can speak, but not what language the candidate speaks when not on the job or how the candidate learned the language.
b 2. Illegal (cannot ask during pre-employment). You cannot ask specific questions about marital status unless it is a BFOQ.
b 3. Illegal (cannot ask during pre-employment). This could be used to discriminate against people with large families.
a 4. Legal (can ask). This is a job-related question for a truck driver, but it would not be for other jobs. Many companies, and in some states, can only hire Teamsters.
_b__ 5. Illegal (cannot ask during pre-employment). This could be used to discriminate against people based on sexual preference.
_b__ 6. Illegal (cannot ask during pre-employment). Union membership could be used to discriminate in a place that is fighting unions.
b 7. Illegal (cannot ask during pre-employment). A date of birth will tell a person’s age. This could be used to discriminate against older workers. If there is a legal age requirements, such as to be the president of the USA, the proper question is to ask: Are you at least ___ (35) years of age.
b 8. Illegal (cannot ask during preemployment). You cannot ask whether the candidate has ever been arrested (an arrest does not prove guilt); however, you can ask whether the candidate has been convicted of a felony.
b 9. Illegal (cannot ask during pre-employment). In this context, it is not job-relevant. However, if you were hiring a delivery person, a car would be a BFOQ. You could ask if he or she has access to a car, but not if he or she owns one. It is not the business concern if the applicant owns are car—what difference does it make if they borrow their parents, or another person’s, car? You also can’t ask to see the applicant’s driver’s license until after being offered the job as a condition of employment.
b 10. Illegal (cannot ask during pre-employment). You can only ask this if there is anything that would prevent an applicant from performing a specific task. You really can’t even ask it then in this form. You could ask if there is anything that would prevent them from being able to do the essential functions of the job (with or without accommodations), but not if they have a disability.
b 11. Illegal (cannot ask during pre-employment). You cannot ask about organizations not related to the job.
a 12. Legal (can ask). You can ask if applicants can prove it, but not to actually prove it until after hiring. You also can’t ask to see the applicant’s driver’s license until after being offered the job as a condition of employment.
b 13. Illegal (cannot ask during pre-employment). You cannot ask about military reserve because it can be used to not hire a member of the military that will need to take time off from work.
b 14. Illegal (cannot ask during pre-employment). You cannot ask about religion; it is not related to the job.
b 15. Illegal (cannot ask during pre-employment). You cannot ask about weight; it is not related to the job.
WORK APPLICATION (Discussion Question)
Have you or anyone you know been asked an illegal question on an application form or during a job interview? What was the question?
If you share this information with others, please be sure to reference this source that is as adapted from. Robert N. Lussier and John R. Hendon, Human Resource Management: Functions, Applications, Skill Building 2/E (Sage, 2016)—Chapter 6 Selecting New Employees