1 Recognizing Discriminatory Pre-Employment Inquiries John M. Ybarra Workforce System Equal Opportunity Officer Kansas Department of Commerce Disclaimer:

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Recognizing Discriminatory Pre-

Employment Inquiries

John M. YbarraWorkforce System Equal Opportunity Officer

Kansas Department of Commerce

Disclaimer: The information contained herein is prepared in summary form for educational purposes and does not constitute legal advice which may often turn on specific facts.

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What is a Pre-Employment Inquiry? Employment Interview Questions Employment Application Questions Job Advertisement Language Recruitment Brochure Language, etc.

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Federal Anti-Discrimination Laws Title VII of the Civil Rights Act of 1964

prohibits employment discrimination based on race, color, religion, sex and national origin.

The Americans with Disabilities Act prohibits discrimination against qualified individuals with disabilities.

The Age Discrimination in Employment Act protects individuals 40 years of age or older.

The Equal Pay Act protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.

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What is Employment Discrimination? Employment discrimination occurs when

job applicants and employees are treated unfairly based on their race, color, ethnicity, gender, sex, national origin, religion, age, disability, or genetics.

Each of these categories is known as a “protected group” or “protected status.”

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Disparate Treatment Discrimination Intentionally treating applicants or employees from a

protected group differently than others.

Examples: Evaluating responses by black applicants

differently than white applicants. Testing female applicants differently than male

applicants. Asking job applicants about their past or current

medical conditions, or requiring certain job applicants to take medical exams.

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Disparate Treatment

Illegally Screening Applicants A company executive contacts an employment agency to hire a new administrative assistant saying she wants to interview candidates with excellent clerical skills who relate well with high level executives. The agency searches the resume database which produces 50 qualified candidates. To reduce this to a more manageable number the agency refines the search to eliminate candidates living in mostly Black or Latino zip codes.

This is Disparate Treatment and violates title VII of the Civil Rights Act.

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Adverse Impact Discrimination Neutral employment practices that unintentionally

discriminate against a protected group. 

Examples: Height and weight requirements Educational requirements Physical agility tests

How is this discriminatory though?

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Adverse Impact Occurs… When height and weight requirements

unrelated to job performance exclude women and persons with disabilities.

When employers require an educational level that does not match the job duties and it negatively impacts persons of color.

When physical agility tests unrelated to job performance exclude women and persons with disabilities.

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Valid Business NecessityDefense to Discrimination

A valid business necessity is a job requirement that excludes a particular group but is necessary for safe and efficient job performance.

“Job Related and Consistent with Business Necessity”

Examples: Height requirements for pilots Age requirement for FBI agents Commercial pilots must have 500 flight hours

and a college degree

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Bona Fide Occupational Qualification

Defense to Discrimination A job requirement that can only be met by applicants of a certain sex, religion, age or national origin.

Examples: A French Restaurant hires only French Chefs. Only males can work as a men’s room attendant. Employees must be 21 years old to serve alcohol. Applicant must be of a certain religion to be a

clergy member.

*Race and Color can never be a BFOQ.

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Discriminatory PracticesYielding to Customer Racial

PreferenceACME Home Care hires personal aides to provide

in-home assistance to elderly persons. ACME has mostly white clients who have exclusively requested white aides. Gladys, an experienced African-American aide applies with ACME because it offers better pay. ACME wants to hire Gladys but decides not to because it believes its clients would not be comfortable with an African American aide.

The employer has violated Title VII because customer racial preference is not a BFOQ.

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Job Title LanguageInadvisable Acceptable Barmaid…………………………………… Server, Cocktail ServerBus Boy, Tray Girl……………………….. Busser, Cafeteria WorkerCleaning Woman…………………………. Cleaning Assistant, Room

AttendantDraftsman…………………………………. Drafter, Auto CAD

SpecialistFireman……………………………………. Fire FighterFisherman………………………………….FisherForeman…………………………………... SupervisorHandyman………………………………… Miscellaneous RepairerJourneyman *……………………………...Journey LevelLeadman…………………………………... Crew, Shift or Team LeaderLongshoreman……………………………. Longshore Worker

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Job Title LanguageInadvisable Acceptable Maid……………………………………….. HousekeeperMaintenance Man………………………… Maintenance WorkerPoliceman………………………………… Police OfficerRepairman………………………………… Repairer, TechnicianSalesman, Saleswoman………………… Sales Representative,

Sales Clerk, Sales ConsultantStewardess, Steward……………………. Flight Attendant, Cabin

AttendantWaiter, Waitress………………………….. Server

Other Non-Discriminatory Options: Sex specific titles such as Guardsman, Horseman, Midwife, etc. may be used if accompanied by the designation “man or woman” or “male or female”.

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Job Advertisement Language Inadvisable Acceptable Man, woman, girl, boy, lady…………….. Person, applicant, candidate, trainee,

incumbent, staff, employee

Married, Single…………………………… No acceptable substitute

Cute, handsome, pretty, clean cut, attractive…….......................... Professional appearance, Employer

has dress codeNon-smokers only…………………………Non-smoking environmentNo criminal record,…………………………Employer does background checkNo feloniesRecent graduate, college student………. College degree required, Internship

Mother, housewife……………………….. Part time, short hours

Young, energetic…………………………. Entry level, trainee, intern

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Job Advertisement LanguageInadvisable Acceptable Black, White, MinorityColored, Oriental, Asian, Mexican…………….Applicant, candidate, incumbentMust own a car………………………………….Must be able to arrive at work on timeMust be male, physically fit…………………… Able to lift 50 lbs. Handicapped, crippled, retarded…………….. Person/People/Individual with

disabilities, accessible entrance/bathroom, etc.

Must have # years experience………………...Successful, wide ranging, considerable experience

Junior…………………………………………… Entry levelSenior…………………………………………… Mature attitude, approach,

or understandingNo unemployed candidates considered…….. Not acceptable

Additional Acceptable Terms: Reliable, responsible, efficient, minimum wages, long hours, overtime, able to travel, willing to relocate, wide-ranging, considerable experience.

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Age InquiriesInadvisable Language “Energetic” “High School” “Young, strong, dynamic” “Youthful appearance” “Persons over 50, 60, 70, etc. need not apply” “Family Oriented” “Maximum experience requirement of X number of

years” “Expected experience range of X to X number of

years”

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Age InquiriesChris, a 65 year old man, saw a newspaper ad

for a cashier at Groceries R Us. The advertisement states:

“Applicant must be young and energetic and possess excellent customer relations skills. Applicants who are selected would be required to stand for long periods of time and lift 20-30 pounds.”

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Age InquiriesChris contacted the EEOC who determined the ad to

be discriminatory. By using the word “young” the ad indicates a specific preference based on age which would deter many qualified older persons from applying.

Deleting the word “young” would probably make the ad acceptable as persons of all ages can be energetic and possess excellent customer service skills.

The requirements to stand for long periods and to lift 20-30 pounds are not age related and appear to be consistent with business necessity.

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Sex/Gender Inquiries

Inadvisable Language

“Only men/women wanted”

“Seeking waitress” (should say server, wait staff, etc.)

Job Advertisements must not express a sex preference unless sex is a bona fide occupational qualification for the job.

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Language/National Origin InquiriesInadvisable Inquiries

“English speaking applicants only”

“Is English your first language?” Requiring the ability to read, write, or speak

English, unless it substantially relates to job duties, can be discriminatory.

The language level sought should not exceed the level needed to perform the job. The EEOC presumes that English-only policies that apply at all times violate Title VII of the Civil Rights Act.

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English-Only PoliciesAn English-only rule may be used if necessary to

promote safe and efficient business operation such as in the following situations:

Communications with customers, co-workers, or supervisors who speak only English.

Emergency situations and cooperative work assignments which require a common language to promote safety and efficiency.

English only policies should apply only to specific workplace situations. Employees should generally be allowed to speak other languages during breaks, meals, etc.

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Health/Disability Inquiries

Inadvisable Language “Must not have a disability” “Must not be predisposed to a disease or illness” “Have you undergone a psychiatric evaluation?” “Do you have any disabilities?”“How much alcohol do you drink each week?” “Have you ever filed for workers compensation?” Employers may not ask applicants if they have a

disability or require them to take a medical exam prior to extending a job offer.

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Health/Disability InquiriesEmployers may ask the following questions to

determine whether an applicant can perform specific job functions. These questions should be asked of every applicant.

Can you meet the essential functions of this job with or without reasonable accommodation?

Describe how you would perform this job with or without reasonable accommodation.

Can you meet the attendance requirements of this job?

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Discriminating Against the Unemployed

Inadvisable Language

“Must be currently employed”

“Only currently employed candidates will be considered”

Using current employment as a selection criteria could adversely impact women, minorities, and individuals with disabilities.

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Arrest Record InquiriesInadvisable Language

“Have you ever been arrested?”

“How many times have you been arrested?”

“Must have no arrest record” There is no law that prohibits employers from

inquiring about arrest and conviction records. However, the EEOC has determined that using such records as an absolute bar to employment has an adverse impact on some racial and ethnic groups.

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Arrest Record Inquiries Since an arrest alone does not necessarily mean

that an applicant has committed a crime, the employer should not assume the applicant committed the offense.

The employer should allow the applicant to explain the circumstances of the arrest(s) and make a reasonable effort to determine whether the explanation is reliable.

The EEOC states that where it appears the applicant engaged in the conduct for which he/she was arrested, and that conduct is job-related and relatively recent, exclusion is justified.

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Conviction Record InquiriesConvictions that occurred within a reasonable

amount of time prior to the application may be inquired about and considered if the employer can show that the conviction is directly related to the position.

Employers should consider these questions: Did the applicant actually commit the offense? What is the nature and gravity of the offense? How long ago was the offense? What is the nature of the job being applied for?

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Arrest/Conviction RecordsInadvisable Language “No felonies” “No felonies or violent misdemeanors” “Must have clean criminal history”

Acceptable Language “Must be able to pass a criminal background

check” “A conviction record will not necessarily be a

bar for employment”

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Drivers License InquiriesInadvisable Language“Must have a drivers license”

Asking for a driver’s license when the job duties don’t involve driving can be discriminatory.

How someone gets to work is not a job related requirement because people can get to work using a variety of methods.

Arbitrarily excluding applicants without a driver’s license may have an adverse impact on persons with disabilities and persons of color.

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Car Ownership InquiriesInadvisable Language

“Must own a car”

Requiring applicants to own a vehicle, unless the job requires use of the vehicle, can be discriminatory.

Car ownership is not a valid test for the candidate’s reliability or ability to get to the work site.

Arbitrarily requiring a vehicle may have an adverse impact on persons with disabilities and/or some persons of color who statistically have lower incomes and may use other transportation.

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Military Service InquiriesInadvisable Language

“Must have been honorably discharged from the military.”

The EEOC recommends that employers not have a policy of rejecting applicants with less than an honorable military discharge.

If employers inquire about military discharge they should include a statement such as:

“Dishonorable discharge is not an absolute bar to employment and other factors will affect the final hiring decision.”

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Scams/Fraud

Questionable Language “Fund transfer agent” “package forwarding”

“Wiring funds” “Guaranteed job” “Immediate Hire” “Multi-Level Marketing” “Sports Marketing” “Must buy products” “Must pay fee to

apply/qualify” “Send check or money order” Salary listed in foreign currency Contact email is @gmail.com or

@yahoo.com or from a foreign country

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Equal Employment OpportunityEmployers should state on applications that they are

an “equal opportunity employer” and that all qualified applicants are encouraged to apply, regardless of race, color, religion, national origin, ancestry, sex, disability, age, or genetics.

ACME Inc. is an equal opportunity employer which does not discriminate on the basis of race, national origin, religion, age, color, sex, disability, veteran’s status, genetics, or any other characteristic protected by local, state or federal laws, rules, or regulations.

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Affirmative Action StatementsACME Inc. maintains an affirmative action plan

through which it makes good faith efforts to recruit, hire and advance in employment qualified minorities, females, disabled individuals and Vietnam era and special disabled veterans.

Affirmative Action Employer: Females and minorities are encouraged to apply.

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Rules of Thumb

“Describe the job, not the person”

“If it’s not job related-don’t ask”

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ResourcesU.S. Equal Employment Opportunity Commission

1-800-669-4000www.eeoc.gov

Kansas Human Rights Commission 785-296-3206www.khrc.net

U.S. Department of Justice Civil Rights DivisionWorker Hotline: 1-800-255-7688 • Employer Hotline: 1-800-255-8155

http://www.justice.gov/crt/

John M. YbarraWorkforce Center Programs Equal Opportunity Officer

[email protected]

http://wco.kansascommerce.com/eo/Pages/default.aspx