Questions asked on application forms and during interviews can create significant legal problems for employers if the questions run afoul of federal, state, and municipal laws that prohibit unlawful preemployment inquiries. The Americans with Disabilities Act (ADA) expressly prohibits disability-related preemployment inquiries made prior to extending a job offer to an applicant.
Title VII of the Civil Rights Act of 1964 has no express prohibition on preemployment inquiries, but the Equal Employment Opportunity Commission (EEOC) cautions that questions concerning an applicant's age, gender, race, color, religion, or national origin may be used as evidence of discrimination. Following the decision in Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020), all employers covered under Title VII are also prohibited from discriminating against applicants or employees based on sexual orientation or transgender status. Other federal laws include provisions that protect the confidentiality of an applicant's medical information, prohibit hiring decisions that discourage union membership, and restrict employment decisions based on an employee's financial history.
Generally, preemployment inquiries are considered discriminatory if they satisfy the following two-prong test:
• The inquiry tends to affect members of a protected class differently than it does other applicants; and
• The inquiry is not justified by a bona fide occupational qualification (BFOQ) or business-related job necessity (Griggs v. Duke Power Co., 401 U.S. 424 (1971)).
Americans with Disabilities Act (ADA). The ADA expressly prohibits disability-related preemployment inquiries made prior ...