Massachusetts Pre-Employment Inquiries (Interviewing) laws & HR compliance analysis

Massachusetts Pre-Employment Inquiries (Interviewing): What you need to know

Protected classes. The Massachusetts Fair Employment Practices Act (FEPA) prohibits an employer from asking about a job applicant’s race, color, natural or protective hairstyle, religious creed, national origin, sex, gender identity, sexual orientation, genetic information, pregnancy or a condition related to said pregnancy (including lactation or the need to express breast milk for a nursing child), ancestry, status as a veteran, age (40 years and older), or handicap, unless based on a bona fide occupational qualification (BFOQ) (Mass. Gen. Laws ch. 151B, §4).
FEPA defines “gender identity” as a person’s gender-related identity, appearance, or behavior, regardless of whether it is different from the person’s physiology or assigned sex at birth. The law covers private employers with six or more employees and all state agencies.
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Retaliation prohibited. The law prohibits employers from discriminating against a person because he or she opposed an unlawful discriminatory practice, filed a complaint, testified, or assisted in any proceeding under the law.
BFOQ exception. An employer may make an employment inquiry about race, color, creed, religion, national origin, sex, sexual orientation, age, ancestry, or disability if it is reasonably necessary to the normal operation of the employer’s business and there is no less intrusive way to ensure that the applicant will be able to perform the essential functions of the job in question.
Guidelines issued by the Massachusetts Commission Against Discrimination state that a BFOQ provides only the “narrowest of exceptions.” The guidelines provide the following examples:
• A stereotypical view of a category of people will never be a BFOQ, e.g., “women cannot do heavy, ...

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