Knowing what you should ask is important. Just as important is knowing what cannot ask. Here is an overview of lawful and unlawful questions commonly asked during the job interview process. This list is provided by Management Recruiters International.
U.S.
Pre-Employment Inquiry Guide*
Please note: Lawful/unlawful pre-employment inquiries vary
by country/region. Please consult local advisors.
Name
Lawful Pre-employment
Inquiries
Applicant’s full name.
“Have you ever worked for this company under a different
name?”
“Is any additional information relative to a different name
necessary to check work record? If yes, explain.”
Unlawful
Pre-employment Inquiries
Original name of an applicant whose name has been changed by
court order or otherwise.
Applicant’s maiden name.
Address or Duration of Residence
Lawful Pre-employment
Inquiries
“How long have you been a resident of this state
or city?”
Birthplace
Unlawful
Pre-employment Inquiries
Birthplace of applicant.
Birthplace of applicant’s parents, spouse, or other
close relatives.
Requirement that applicant submit birth certificate,
naturalization, or baptismal record.
Age
Lawful Pre-employment
Inquiries
“Are you 18 years old
or older?”
“Are you of a legal age to work?”
Unlawful
Pre-employment Inquiries
“How old are you?”
“What is your date of birth?”
Religion or Creed
Lawful Pre-employment
Inquiries
You may ask about a candidate’s ability to work on weekends
or holidays, if this availability is job-related. However, you may have to accommodate
candidates’ religious observances that conflict with your interview schedules,
if it is not a burden to do so.
Unlawful
Pre-employment Inquiries
Inquiry into an applicant’s religious denomination, religious
affiliations, church, parish, pastor, or religious holidays observed.
Race or Color
Unlawful
Pre-employment Inquiries
Complexion or color of skin.
Photograph
Unlawful
Pre-employment Inquiries
Any requirement for a photograph prior to hire.
Height
Unlawful
Pre-employment Inquiries
Inquiry regarding applicant’s height.
Weight
Unlawful
Pre-employment Inquiries
Inquiry regarding applicant’s weight.
Marital Status
Lawful Pre-employment
Inquiries
Does this employer employ your spouse? Has the candidate has ever been known by
another name, in order to facilitate accurate background check.
Unlawful
Pre-employment Inquiries
Asking a person’s maiden name, gender, marital status
spouse, preference for ‘Miss,’ ‘Mrs.,’ or ‘Ms.,’ pregnancy, family plans, or
childcare arrangements. Requirement that an applicant provide any information
regarding marital status or children. Inquiry as to the ability to reproduce or
advocacy of any form of birth control.
Handicap or Disability
Lawful Pre-employment
Inquiries
Can you perform the duties of the job in which you wish to
be employed, with or without accommodation? You may inquire about the candidate’s
total number of absences in the previous year.
Unlawful
Pre-employment Inquiries
The Americans with Disabilities Act (ADA) prohibits all
pre-employment medical inquiries. Do not
ask specific questions about diseases or illnesses, the number of days the
candidate was sick in the previous year, workers compensation injuries or claims,
mental health issues and history, past addiction, past illegal drug use or
current prescription drug use.
Citizenship
Lawful Pre-employment
Inquiries
“Are you currently
authorized to work in the United
States on a full-time basis for any employer?”
If the applicant’s answer is “yes”, you may then ask “Will you now or in the
near future require employment visa sponsorship (ie, H1B Visa)?” If the
candidate’s answer is “no” to your original question, whether they are
currently authorized to work in the United States on a full-time basis, you may
then ask what his or her immigration status is. (To avoid discrimination claim based on
national origin, these questions should be asked of all candidates, not just
“foreign-looking” or “foreign-sounding” candidates).
Unlawful
Pre-employment Inquiries
(Questions below are unlawful unless asked as part of the
Federal I-9 process). “Of what country are you a citizen?” Whether an applicant
is naturalized or a native-born citizen; the date when the applicant acquired citizenship. Requirement that an applicant produce naturalization
papers or first papers. Whether applicant’s parents or spouse are naturalized
or native-born citizens of the U.S.,
the date when such parent or spouse acquired citizenship.
Military Status
Lawful Pre-employment
Inquiries
You may ask about job-related military experience or
training.
Unlawful
Pre-employment Inquiries
Inquiry about military status or type of military discharge. Inquiry about future military commitments
(e.g., reserve status) that may require time off work.
National Origin
Lawful Pre-employment
Inquiries
Inquiry into languages applicant speaks and writes fluently.
Unlawful
Pre-employment Inquiries
Inquiry into applicant’s:
a) lineage
b) descent
c) national origin
d) descent
e) percentage, or nationality unless pursuant to the Federal
I-9 process.
Nationality or homeland of applicant’s parents or spouse. Inquiries
into how applicant acquired ability to read, write, or speak a foreign language.
Education
Lawful Pre-employment
Inquiries
Inquiry into the academic, vocational, or professional
education of an applicant and the public and private schools attended.
Financial Status
Lawful Pre-employment
Inquiries
You may perform credit checks if you follow the Fair Credit
Reporting Act Regulations.
Unlawful
Pre-employment Inquiries
Inquiry into financial status (unless job-related), past
garnishments or bankruptcy.
Experience
Lawful Pre-employment
Inquiries
Inquiry into work experience. Inquiry into countries
applicant has visited.
Arrests
Lawful Pre-employment
Inquiries
“Have you ever been
convicted of a crime?” “Are there any felony charges pending against you?”
Unlawful
Pre-employment Inquiries
Inquiry regarding arrests, which did not result in conviction
(except for law enforcement agencies).
Organizations or
Activities
Lawful Pre-employment
Inquiries
Inquiry into the organizations of which an applicant is a
member, excluding names or characters which indicate the race, color, religion,
national origin or ancestry of its members.
Unlawful
Pre-employment Inquiries
Do not inquire as to a list of clubs, societies, or lodges;
or about smoking, drinking or other legal activities that the applicant may
engage in off-duty. More than 1/2 of U.S.
states protect smokers against employment discrimination based on smoking
off-duty, and a growing number prohibit
Contributed by Morgan Pace, Senior Dentist Recruiter for
ETS Dental, www.etsdental.com | mpace@etsdental.com | 540-591-9102
