EEOC Statements on PreEmployment Inquiries

1
EEOC Statements on Pre-Employment Inquiries
Although Title VII does not make pre-employment
inquiries concerning race, color, religion or
national origin per se violations of the law, the
Commissions responsibility to equal employment
opportunity compels it to regard such inquiries
with extreme disfavor.
in the investigation of charges alleging the
commission of unlawful employment practices, the
Commission will pay particular attention to the
use by the party against whom charges have been
made of pre-employment inquiries concerning race,
religion, color, or national origin, or other
inquiries which tend directly or indirectly to
disclose such information. The fact that such
questions are asked may, unless otherwise
explained, constitute evidence of discrimination,
and will weigh significantly in the Commissions
decision as to whether or not Title VII has been
violated
2
Previous research studies examining employment
applications by date of study
Note Adapted from Wallace, Tye, and Vodanovich,
2000.
3
Percentage of most commonly identified
inadvisable application blank items by
sample from Wallace Vodanovich (in press)
Public Personnel Management
Customer Service
Fortune 500
4
Height and Weight

• EEOC and the courts have ruled minimum height and
  weight requirements to be illegal if they screen
  out a disproportionate number of minority group
  individuals (e.g. Spanish surnamed or Asian
  Americans) or women, and the employer cannot show
  that these standards are essential to the safe
  performance of the job in question

5
Marital Status, Number of Children and Provision
for Child Care

• Questions about these things may be a violation
  of Title VII if they are used to deny or limit
  opportunities for female applicants
• It is a title VII violation for employers to
  inquire about child care arrangements to only
  their female applicants
• Supreme Court ruled that it is unlawful for
  employers to have different hiring practices for
  men and women with school-aged children
• Unacceptable Question Do you plan on having any
  children?
• Information needed for tax, insurance or social
  security can be obtained after employment

6
English Language Skill

• A violation of Title VII results when
• The use of an English language proficiency test
  has an adverse impact upon a particular minority
  group and
• English language skill is not a requirement of
  the work to be performed

7
Educational Requirements

• Requirement of high school diploma discriminatory
  when
• It operates to disqualify groups protected under
  Title VII at a higher rate than other groups
  (e.g., Griggs case)
• There is no evidence that the requirement is
  significantly related to job performance or
  business necessity
• Unacceptable question What year did you graduate
  from high school?
• Acceptable question What schools (high school,
  undergraduate, graduate) did you attend?

8
Friends or Relatives Working for the Employer

• Information regarding these things is not
  relevant to applicants competence
• Unlawful if it indicates that employers are
  giving preference to applicants who have friends
  or relatives of the current employees
• Unlawful if the preference would reduce or limit
  opportunities for women or minority group members
• Nepotism policies which prohibit or limit
  opportunities for ones spouse or relative may be
  illegal if it has an adverse impact on employment
  opportunities for man or women as a group
• Unacceptable question Do you have any relatives
  working for this company?
• Acceptable question If a minor, what is the name
  of your parent or guardian?

9
Arrest Records

• Making employment decisions on the basis of
  arrest records involving no subsequent
  convictions has a disproportionate effect on some
  minority groups because they are arrested more
  than whites
• Unlawful without proof of business necessity
• Merely requesting arrest records discourages
  minority applicants from applying and is illegal
• Unacceptable question Have you ever been
  arrested?

10
Conviction Records

• Convictions dont constitute automatic rejection
  and an employer may give fair consideration to
  the relationship between the applicants
  conviction and their ability to perform the job
  in question
• Cause for rejection if number and nature make
  applicant unsuitable for the job
• A statement should accompany inquiries stating
  that convictions arent automatic bar to
  employment
• Factors such as age, time of offense, seriousness
  of violation and rehabilitation considered
• Acceptable question Have you ever been convicted
  of any crime? If so, please explain.

11
Discharge from Military Service

• Making honorable discharge from the military an
  employment requirement has a disparate effect
  upon minorities and may be a violation of Title
  VII
• Employers should avoid inquiries about from
  military unless they can show business necessity
• One federal district court has held that an
  employer may inquire about an applicants
  military service record if it is not used in
  hiring, but used to decide whether further
  investigation is needed
• If inquiry is made then employer should provide a
  statement that dishonorable discharge is not an
  absolute bar to employment
• Unacceptable question What type of discharge did
  you receive from the U.S. Navy?
• Acceptable question What were your duties in the
  U.S. army?

12
Age

• ADEA prohibits discrimination based on age with
  respect to individuals who 40 years old or older
• Employment applications that use this information
  are closely scrutinized to ensure that they are
  not in violation of ADEA
• Permissible when age requirement is BFOQ or based
  reasonable factors other than age

13
Citizenship

• Consideration of an applicants citizenship may
  constitute evidence of discrimination on the
  basis of national origin
• Lawfully immigrated aliens with legal eligibility
  to work may not be discriminated against on the
  basis of citizenship except in the interest of
  national security
• If states have enacted laws prohibiting
  non-citizens their laws are superceded by Section
  708 of Title VII
• Unacceptable question Thats a nice accent,
  where were you born?
• Acceptable question Are you a citizen of the
  U.S.? If not, do you have a work permit?

14
Economic Status

• Rejection of minority applicants because of poor
  credit rating has a disparate impact on minority
  groups and has been found unlawful unless
  business necessity can be shown
• Inquiries about an applicants financial status,
  such as bankruptcy, car ownership, rental, or
  ownership of a house, length of residence at an
  address, or past garnishment of wages, may
  violate Title VII if used to make employment
  decisions
• Unacceptable question Please list your credit
  references.
• Acceptable question May I contact your previous
  employer?

15
Availability for work on weekends or holidays

• Employers have obligation to accommodate
  employees religious beliefs unless it poses
  undue hardship
• Such inquiries have an exclusionary effect on
  persons practicing certain religious beliefs and
• shouldnt be asked unless the employer can show
  that the questions have not had an exclusionary
  effect on its employees who need accommodations
  for their religious beliefs, that the questions
  are otherwise justified, and that there are no
  alternative procedures which would have a lesser
  exclusionary effect
• Unacceptable question Would you be absent for
  any religious holidays?
• Ask later make reasonable accomodations

16
Data required for legitimate business purposes

• Data on marital status, number and age of
  children, and other similar issues which could be
  used in a discriminatory manner but which are
  necessary for insurance should be obtained after
  employment
• Tear-off sheets with the above information are
  permitted but only for purposes unrelated to
  selection
• In an investigation of discrimination, the burden
  of proof is on employer to show that answers to
  questions on application forms or in oral
  interviews are not used in hiring decisions in a
  discriminatory manner
• It is in employers own self-interest to
  carefully review all procedures used in screening
  applicants, eliminating or altering any not
  justified by business necessity
• Unacceptable question To what clubs or
  organizations do you belong?
• Acceptable question What organizations do you
  belong, excluding those that indicate religion,
  national origin etc.

17
Frequency of Common Inappropriate Application
Blank Questions