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, 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. 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)).
In addition to the characteristics protected under federal law, some states and municipalities have laws protecting individuals based on characteristics such as medical condition, military status, genetic predisposition, sickle-cell anemia, credit rating, sexual orientation, domestic partnership status, and familial status. Many jurisdictions have adopted statutes that protect individuals based on gender identity. Seeking information about ...