Inappropriate Question 3: ''Where were you born? Are you a U.S. citizen? Where did you learn to speak Spanish?''
- Inappropriate Question 4: ''Are you married? Are you planning on having children in the next few years? Can you make adequate provisions for child care?''
- Inappropriate Question 5: ''Would your religion prevent you from working weekends?''
- Inappropriate Question 6: ''Are you disabled? Do you have any previous major medical problems? Have you ever filed for workers' compensation? How many days were you sick last year? Do you have AIDS? What prescription drugs are you currently taking? Have you ever been treated for alcoholism or mental health problems?''
- Inappropriate Question 7: ''Have you ever been arrested?''
- Inappropriate Question 8: ''What kind of discharge did you get from the military?''
- Inappropriate Question 9: ''Have you ever declared bankruptcy or had your wages garnished?''
- Inappropriate Question 10: ''Who is the nearest relative we should contact in case of an emergency?''
- Allowable Preemployment Queries Under the ADA
These questions transgress guidelines regarding national origin, birthplace, and citizenship. Instead you should ask, ''Could you, after employment, submit verification of your legal right to work in the United States?'' Questions regarding a candidate s native language or acquisition of foreign languages in general should be avoided unless such language proficiency is an essential function of the particular job.
By the way, is it legal to discriminate against someone because the person has an accent? No! Courts have held that accents are ''immutable characteristics innately tied to an individual s culture. Accordingly, discriminating against someone on the basis of a foreign accent can land you in hot water. However, be practical. You have the right as an employer not to hire a receptionist who is difficult to understand over the phone because the candidate' s English is stilted. No jury would fault you for that practical business necessity, so you' d pass the ''reasonable person'' standard with flying colors. Still, when in doubt, speak with an attorney. An ounce of prevention is worth a pound of cure.
Inappropriate Question 4: ''Are you married? Are you planning on having children in the next few years? Can you make adequate provisions for child care?''
Whoops! A big no-no on your part. It' s a legitimate concern to wonder whether a potential employee can meet overtime demands or report to work on time. However, you are limited by law to stating such things as the hours, any overtime demands, and company travel expectations and then simply questioning whether candidates would have any reason why they couldn't meet those requirements.
Inappropriate Question 5: ''Would your religion prevent you from working weekends?''
Asking such a question discriminates on the basis of religious affiliation. It' s just as easy and effective to state: ''Weekend and holiday work is required. Is that acceptable to you as a condition of employment?
Inappropriate Question 6: ''Are you disabled? Do you have any previous major medical problems? Have you ever filed for workers' compensation? How many days were you sick last year? Do you have AIDS? What prescription drugs are you currently taking? Have you ever been treated for alcoholism or mental health problems?''
The Americans with Disabilities Act (ADA) of 1992 requires businesses with fifteen or more employees to make their facilities accessible to the physically and mentally disabled and prohibits job discrimination on the basis of disability. The ADA says that a company can't exclude a qualified person from a job if that individual can perform the ''essential functions'' of the job either unaided or with ''reasonable accommodation.'' The terms in quotation marks are, of course, subject to legal interpretation. To play it safe, though, all you have to remember to ask after presenting a candidate with an accurate job description is, ''Are you capable of performing the position's essential job functions with or without accommodation?''
Inappropriate Question 7: ''Have you ever been arrested?''
It is allowable to ask candidates whether they have ever been convicted of a felony, but this question (often found on your employment application) must typically be accompanied by a statement that a conviction will not necessarily disqualify a candidate from consideration for the job. If you're wondering what the difference is between being arrested and being convicted of a felony, it's that those arrested are presumed innocent until proven guilty. Moreover, categorically rejecting applicants on the basis of a felony record is a problem for two major reasons. First, the felony may have no relation to the essential functions of the job. Second, such a policy has been held to have an adverse discriminatory impact on certain ethnic and racial minorities.
Inappropriate Question 8: ''What kind of discharge did you get from the military?''
Sorry, folks—military service questions must be limited to relevant skills acquired during service. Period.
Inappropriate Question 9: ''Have you ever declared bankruptcy or had your wages garnished?''
There are no acceptable alternative questions that allow you to address these issues before the hire. You are, however, perfectly within your rights to make employment offers contingent on credit checks provided: (1) applicable state and federal laws are followed; and (2) good credit is necessary to perform the essential functions of the job.
Inappropriate Question 10: ''Who is the nearest relative we should contact in case of an emergency?''
It' s fine for you to ask for someone to contact in case of an emergency. However, asking for the nearest relative could border on discrimination by national origin, race, or marital status.
Understand that these protections were set up nationally to level the playing field and give all citizens an equal chance to capitalize on employment opportunities. Seen in the optimistic light in which they were created, these queries help ensure that you (and every other U.S. company) run your business fairly and keep America working. Just so that you don't get the impression that all questions bordering on personal issues are verboten, let s take a brief look at certain personal queries that are allowed under the Americans with Disabilities Act.
Allowable Preemployment Queries Under the ADA
"I see you broke your leg. You must be an avid skier!''
''Can you meet the attendance requirements of this job? How many days did you take leave last year?'' (Note that the question doesn't say, ''How many days were you sick or absent last year?'')
''Do you illegally use drugs? Have you used illegal drugs in the past two years?'' (The ADA protects recovering alcoholics, but active users of illegal narcotics are not covered under any federal law.)
The bottom line regarding the previous preemployment inquiries is that they can indeed discriminate against a candidate s rights to privacy. Although they at first seem somewhat burdensome in terms of hindering your ability to understand a candidate s work habits and reliability, the same issues can usually be found out simply by asking questions a different way (for example, ''How many days did you take leave last year? versus ''How many days were you sick? ). In cases where no alternative questions are permissible (for example, military discharge status or credit worthiness), you'll simply have to build a case for the individual s candidacy on other selection criteria. Forcing these forbidden issues tempts fate and simply isn't worth the legal exposure.