Asking the Right Questions

In their zeal to find the right candidate for that important job opening, managers and owners often unknowingly go beyond the legal limits in the questions they ask. In fact, many companies use application forms that contain illegal questions ...... The best way to avoid violations and lawsuits is to ask for information directly related to an individual’s ability to perform the job. In addition, it’s a good idea to periodically review the questions that can and cannot be asked under federal and state laws.

Follow this general overview of what questions can’t be asked:

Ö age or birth date

Ö racial or ethic background

Ö religious affiliation; what church an applicant attends, or religious holidays an applicant observes

Ö national origin; where parents, spouse or relatives are from; an applicant's native language

Ö marital status

Ö number and/or age of children

Ö provision for child care

Ö pregnancy or child-bearing issues

Ö candidate’s general medical condition, state of health, or any non-job-related physical data.

Avoid questions that will elicit this kind of information indirectly:

A woman’s maiden name, place of birth, or social clubs

Another subject in which care is required is in asking applicants if they are disabled. The definition of disabled under federal law is very broad. For example, people are disabled if they have a mental or physical condition that substantially limits their ability to perform one or more major “life activities”; if they have a record of such a problem; or if the employer thinks they have such a problem. (See “Americans with Disabilities Act” on p.41)

In addition, courts have ruled that obesity, suicidal tendencies, post-traumatic stress syndrome, diabetes and great sensitivity to tobacco smoke are all handicaps protected by federal and state laws.

Under federal law, alcoholics and drug addicts are also considered to be handicapped and protected by anti-discrimination laws unless their condition currently prevents them from performing a job adequately.

More than 30 states have decided that AIDS is physical handicap entitled to protection under anti-discrimination laws, just as other communicable diseases. Asking applicants whether they carry the AIDS antibodies and screening them out of the work force is illegal in many jurisdictions.

State laws vary as to what employers may or may not ask. When both federal and state anti-discrimination laws apply, err on the side of following the more stringent of the two.