The North Dakota Human Rights Act prohibits employers from making inquiries of prospective employees that state or imply any limitation or discrimination based on race, color, religion, sex, national origin, age, physical or mental disability, marital status, public assistance status, or participation in lawful activity off the employer's premises during nonworking hours. The law applies to all employers in the state (ND Cent. Code Sec. 14-02.4-01 et seq.).
Exceptions. An employer may make an employment inquiry about religion, sex, national origin, physical or mental disability, or marital status if it is a bona fide occupational qualification (BFOQ) for the position in question. In order to be a BFOQ, a characteristic must be reasonably necessary to the applicant's ability to perform the job. For example, being female would be a legitimate BFOQ for a person applying for a job as a model of women's clothing. The BFOQ exception applies only in limited circumstances, and in general, courts have been extremely reluctant to sanction otherwise discriminatory practices on BFOQ grounds. Employers should use caution in relying on the BFOQ rationale.
Employers are also permitted to refuse to hire an individual whose participation in a lawful, off-duty activity is contrary to a BFOQ that reasonably and rationally relates to employment activities and responsibilities of a particular employee or group of employees.
Genetic information. The federal Genetic Information Nondiscrimination Act (GINA) prohibits employers from using genetic information in employment decisions. The prohibition applies to genetic information of applicants, employees, or their family members. Subject to limited exceptions, GINA also ...