Off-limit Pre-Employment Inquiries

Asking the wrong questions while interviewing job applicants can lead to a lawsuit. Here are some more pre-employment inquiries that are off-limits for employers:

Education: The EEOC is gravitating toward a policy of permitting inquiries only into areas that are relevant to the position for which the candidate is applying. If the job in question is an entry level, unskilled position, information about education may be meaningless. However, it is lawful to inquire if the applicant can read and speak English.   

Financial and credit history: The kind of information that can be requested is regulated by the federal Fair Credit Reporting Act. An applicant must give written permission to a prospective employer to run a credit check. If the report turns up something negative, the applicant must be notified and given the opportunity to respond. It is generally unlawful to inquire about previous bankruptcies.

Military service: It is acceptable to inquire into military training and experience. However, inquiry about the type of discharge received is prohibited.

Social security numbers: Employers are not permitted to ask applicants for social security numbers with one very important exception. If an employer is using the E-Verify system to check an applicant’s legal eligibility to hold employment in the United States, use of a social security number is permitted.

Health history: It is only permissible to ask if an applicant can perform the essential functions of the job, with or without reasonable accommodation. More detailed medical information, including a physical exam, can be requested following a conditional offer of employment. Inquiries into current use of illegal drugs are allowed.

Marital and family status: Many employers believe that families in general and children in particular have an adverse impact on a worker’s motivation and attendance. For that reason many married people and particularly working mothers believe that they suffer discrimination in hiring. To avoid this problem, it is unlawful to make any pre-employment inquiries into marital or familial status. Inquiries into sexual orientation or preference should be considered off-limits.

Local laws: Some cities and states have passed their own anti-discrimination ordinances that protect new and sometimes unique categories of applicants. For example, New York City has just passed a law that makes it unlawful to discriminate against the unemployed. Some localities are now considering laws prohibiting discrimination against the obese. When in doubt, check with your lawyer!

A final note of caution is in order. Most employers collect a great deal of personal information on applicants and employees. Given the epidemic of identity theft that is plaguing the nation, all such information must be carefully protected. Any employer who fails to safeguard sensitive personal information may find itself facing potential liability.

Perry Heidecker is senior counsel for Milman Labuda Law Group PLLC, Lake Success, N.Y. The firm is a full-service Employment Law practice focused on counseling, preventive advice and training, policy and procedure design, representation before administrative agencies, litigation, and appeals.