Disclaimer: This article is intended to be general information only. Nothing in this article constitutes legal advice. Please consult with an attorney before making any legal decisions. Because some employment laws vary from state to state throughout the country, some of the information that follows may not be applicable to a particular business or employer.
What can and can’t employers ask job applicants?
For many employers, knowing which questions can be asked of job applicants is akin to navigating a minefield, in large part because of the complexity of the laws associated with employment.
However, a good understanding of federal employment law can help avoid potentially explosive situations. Read more to find out what questions are likely permitted by U.S. employment laws and which ones aren’t.
Questions that can’t be asked
Nearly all questions that can’t be asked on a job application or during an interview relate to specific traits, attributes, sources of information, or characteristics identified by the U.S. Federal Government. These characteristics are often the basis of discrimination and therefore cannot be a basis for, among other things, not hiring a particular job applicant.
These characteristics include:
- National origin
- Genetic information
- Veteran status
- Familial status
In addition, some states have also passed laws that treat the following as protected characteristics:
- Sexual orientation
- Marital status
Given the protected characteristics listed above, it would seem reasonable to assume that employers just can’t specifically inquire as to whether a job applicant possessed any such characteristics; however, simply not inquiring about those characteristics—though generally a good practice—is only a starting point.
In fact, employers can get into hot water even if they don’t directly ask whether a particular applicant possesses a protected characteristic. By simply discussing or indirectly eliciting information about a protected characteristic, the employer could potentially be in violation of employment law.
For example, asking questions relating to or associated with protected characteristics can violate employment laws. If an employer were to ask an applicant if she planned on starting a family, even if it was coupled with a question about the applicant’s future plans or goals, the employer could be in violation of this law.
Additionally, asking an applicant if he/she celebrated a religious holiday would in effect be indirectly inquiring about an applicant or job candidate’s religion.
To be safe, employers should steer clear of these topics altogether to avoid directly or indirectly asking about these protected characteristics.
Questions that can be asked
While the protected characteristics set forth by the federal and state governments limit the types of questions employers can ask, there are still questions that can help determine if an applicant or job candidate is a good fit for the company.
Generally, employers can ask questions regarding whether the applicant will likely be able to fulfill specific duties/obligations of the job, e.g. ability to lift a certain amount of weight, and whether the applicant can satisfy specific requirements of the job, e.g. provide documentation of legal right to remain in the U.S.
This is not to say that employers can’t ask questions that would disqualify an applicant from the job because the applicant doesn’t possess those skills, qualities, or characteristics required by the job; in fact, the truth is quite the contrary.
For example, if a job requires that a person perform heavy lifting and it appears that the applicant has a disability that would likely make it very difficult to perform such heavy lifting, it is likely permissible to ask the applicant whether he/she can lift the amounts required by the job—the key is to make no mention of any disability when inquiring about the applicant’s capabilities.
Although it is permissible to ask whether an applicant can fulfill the duties, obligations, or requirements associated with the job, the duties, obligations, or requirements of the job cannot in and of themselves be illegal.
Additionally, interviewers can also ask questions pertaining to company culture, work ethic, and of course, job skills, as outlined above.
Applicant questions and interviewer responses
In the context of a job interview, the questions asked by an employer are only one part of the equation, and many interviewees have questions of their own for their interviewers, which could potentially be problematic for the employer.
In situations where an interviewer is either inexperienced with or not comfortable answering questions associated with protected characteristics, an interviewer can defer the question to the human resources department or other counsel.
To recap: Here are some rules to follow
Interviewers can avoid violating employment law by adhering to the following rules:
- Never ask direct questions or questions that tend to elicit information about a protected characteristic.
- Never ask job applicants if they can perform illegal duties or responsibilities.
- Defer questions asked by applicants about protected characteristics to the human resources department or other counsel.
- Know it is generally safe to ask if applicants can fulfill specific duties/obligations of the job.
While these rules apply to many circumstances, the laws associated with employment discrimination are fairly nuanced, and it may be wise to seek advice from a human resources professional or other counsel. It’s also important to keep in mind that there are indeed situations in which expert counsel may be required so as not to run afoul of employment laws.
Despite the fact that this post expressly addresses job interviews, many of these principles also apply to firing, compensation, assignment or classification of employees, transfer, promotion, layoff or recall, job advertisements, recruitment, testing, use of company facilities, training and apprenticeship programs, fringe benefits, pay, retirement plans, disability leave, and other terms and conditions of employment.
Do you have any further questions for us about what you can legally ask your applicants? Maybe you sought legal counsel before hiring, and can share your experience with other entrepreneurs? Ask us a question or share your experience in the comments below.