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Limit Your Pre-Employment Inquiries to Job-Related Questions

As most employers know, it is unlawful to ask an employment or promotion candidate questions which reflect bias based on race, color, age, gender, religion, or any other protected status. For example, a candidate cannot be asked about their race, age/date of birth, religion, marital status, pregnancy, children, or plans for a family. Hiring decisions cannot be based on stereotypes or assumptions about a person’s protected status. Employers and all hiring managers should be aware of these restrictions before any interview takes place.  

The Equal Employment Opportunity Commission’s (EEOC) Prohibited Employment Policies/Practices guidelines provide that “[a]s a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.”

A recent case from the United States Court of Appeal for the Second Circuit  demonstrates how complicated the analysis can get when an employer asks “prohibited” questions. In that case, a 65-year-old man applied for a senior project manager position. During his interview, the president of the company stated that he was looking for an employee who would stay 10 to 15 years and asked the applicant his age (the applicant responded only that he was “up in years” and in good physical condition). The president also asked whether he was “capable of withstanding the vigor of the position.” After the company failed to hire him, the applicant filed a failure-to-hire age discrimination lawsuit under the federal Age Discrimination in Employment Act (ADEA).

On September 27, 2016, the court ruled in the company’s favor, stating that the circumstances of the applicant not being hired failed to give rise to an inference of age discrimination. The court noted that the company employed workers of similar age or older than the applicant, and after he was passed over for the position a candidate only one year younger was hired.

Although the specific circumstances of the above case yielded a victory for the company, employers are well advised to avoid asking applicants any questions touching on their protected status or making statements which could be construed as reflecting stereotypes or assumptions about a person’s protected status. To the extent employees participate in the hiring or promotion process, they should be trained on what types of questions are unlawful and advised that only job-related questions are permissible. This is true even if an applicant volunteers information touching on their protected status.

© 2019 Foley & Lardner LLP

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About this Author

Philip B. Phillips, Foley Lardner, Automotive Industry Lawyer, Labor Rights
Partner

Philip B. Phillips is a litigation partner with Foley & Lardner LLP and chair of the firm’s Litigation Department in Detroit. He is a member of the Labor & Employment Practice and Automotive Industry Team, and also serves as the professional responsibility partner for Foley’s Detroit office. He counsels and represents business clients across the country in all aspects of labor and employment law, including FLSA wage and hour collective actions and multi-plaintiff employment litigation defense, non-competition and trade secrets matters, collective bargaining and...

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