There are numerous laws and executive orders requiring equal opportunity and affirmative action. Under these laws employers are required to conduct the applicant screening process in a nondiscriminatory manner. As a result, restrictions have been placed on the kinds of inquiries which may be made of an applicant.
These guidelines for preemployment inquires have been prepared by the Affirmative Action Offices of the University of Illinois. The following topics delineate areas in which questions are frequently asked during the preemployment interviews. Inquiries which are permitted with certain restrictions are listed in the second category.
Pre-employment Inquiries Prohibited by Law:
- A. Age
- B. Arrest Record
- C. Citizenship
- D. Degrees
- E. Disability
- F. Financial Status
- G. Height and Weight
- H. Lawful Products
- I. Marital and Family Status
- J. MIlitary
- K. National Origin
- L. Photograph
- M. Pregnancy
- N. Race/Color
- O. Religion/ Creed
- P. Sex
- Q. Social
- R. Workers’ Benefits
Preemployment Inquiries with Restrictions:
I. Preemployment inquiries concerning the following are generally PROHIBITED by law (exceptions are noted):
C. CITIZENSHIP- Proof of citizenship, birth certificate or naturalization papers may not be required, although documentation establishing legal eligibility to work in the U.S. must be presented upon employment. See also AVAILABILITY, Part II.B.4.
E. DISABILITY- General inquiries as to an applicant’s mental and physical condition and questions such as “Are you disabled?” or “Do you have any physical disabilities?” are not permissible. However, a question like “Are you able to perform the essential responsibilities of this position with or without an accommodation?” is permissible.1 See also ABILITY, Part II.A.2.a.
F. FINANCIAL STATUS- Inquiries concerning a job applicant’s financial status, such as home or car ownership, credit ratings, arrangements for financing education or training, social security, bank accounts and past garnishment of wages are not permissible.
G. HEIGHT AND WEIGHT- Inquiries as to height and weight may not be asked unless they are job-related and such standards are proven to be essential to safe performance of the job in question. See also ABILITY, Part II.A.2.b.
H. LAWFUL PRODUCTS- Inquiries regarding the use of lawful products, such as tobacco, during nonworking hours should be avoided. Under state law, it is illegal to refuse to hire an individual because the individual uses lawful products off the premises of the employer during nonworking hours.
J. MILITARY- Proof of honorable discharge may not be required nor any inquiries as to type of discharge from the U.S. armed forces. Inquiries concerning experience in armed forces other than the U.S. armed forces are not permitted.1 See also ABILITY and AVAILIBILITY, Parts II.A.1 and II.B.3.
O. RELIGION/CREED – Inquiries as to an applicant’s religious denomination or affiliation, church, parish, pastor or religious holidays observed are not permissible. See also AVAILIBILITY, Part II.B.3.
Q. SOCIAL- Inquiries about membership in social clubs, religious groups, non-professional organizations or other non-job-related activities are not permitted. It is permissible, however, to ask if an applicant is a member of a job-related organization.
R. WORKER’S BENEFITS- Inquiries regarding the filing of claims for benefits of COMPENSATION/ the receipt of benefits under the Workers’ Diseases Compensation Act or the Workers’ Occupational Diseases Act are not permitted.
It is permissible to ask:
- If the applicant has acquired the necessary skills, training, experience and education for the job; this may include his/her ability to speak English or a required foreign language, or his/her training or experience in the U.S. armed forces.
- If the applicant is able to perform the essential functions of a job.
- It is not permissible to inquire about an applicant’s physical or mental disability, but any inquiry may be made regarding the ability to perform the essential functions of a particular position. For example, the question “Do you have any disability?” is NOT PERMISSIBLE, whereas “Are you able to perform the essential functions of this job with or without an accommodation?” is PERMISSIBLE.
- Applicants may be asked to describe how, with or without accommodation, the applicant will be able to perform the job-related functions if this is asked of all applicants for a position. Employers are prohibited from requiring applicants to submit to a medical examination before a conditional offer of employment is made. All entering employees in the same job category should be subjected to the same post-offer medical examination.
- Except in cases where “undue hardship” can be proven, employers must make “reasonable accommodation” for the physical and mental limitations of a “qualified” employee or applicant with a disability, i.e., one who with reasonable accommodation can perform the essential duties of the particular job. “Reasonable accommodation” may include alteration of duties, alteration of work schedule, alteration of physical setting and provision of aids.
Height and Weight
- It is permissible to ask height and weight if it can be proven that they are BFOQ’s (bona fide occupational qualifications).
It is permissible to ask:
- If an applicant is available for weekend or evening work only if this is required uniformly of occupants of the job.
- If any applicant has responsibilities, commitments or other activities which would prevent him/her from being on time or from keeping required work schedules and attendance records.
- How long an applicant expects to work; if he/she would require any lengthy absences in the near future.
Sex Discrimination – The above three questions concerning availability often have been used to discriminate against women with family responsibilities. Therefore, if these questions need to be asked, they must be asked of all applicants, males and females.
Religious Discrimination – Even if an applicant’s religious observances prevents him/her from working certain hours, this fact cannot be used to bar him/her from employment.
Except in cases where undue hardship can be proven, employers must make “reasonable accommodation” for religious practices of an employee or prospective employee. “Reasonable accommodation” may include voluntary substitutes, flexible scheduling, lateral transfer, change of job assignments or allowing an alternative to payment of union dues.
Military Status – It is illegal to discriminate against a person due to that person’s status on active duty in the armed forces of the U.S.
- If the applicant is legally eligible to work in the U.S. New employees must provide the documentation required by the Immigration Reform and Control Act of 1986.
- Address- An applicant’s current address may be requested but only for purposes of further contact.
- Change of Name- It is permissible to ask if the applicant has previously worked for the organization under a different name.
- Convictions- Inquiries about convictions which relate reasonably to fitness to perform a particular job are permissible. Security checks for some positions are required by law.
- Drug Tests- Drug tests for some positions are required by law.
- References- Personal or professional references may be required. However, it may not be advisable to require a reference from an applicant’s present employer. NOTE: Preemployment inquiries cited as impermissible should be avoided in checking an applicant’s references or previous employers.
- Relatives- It is permissible to ask if the applicant has relatives who work for the organization or a competitive organization. The question “person to be notified in case of emergency” is preferable to “nearest relatives to be notified.”
An applicant may be invited to self-identify as disabled, a disable veteran or a veteran of the Vietnam era pursuant to an employer’s affirmative action program for these groups. This invitation is in the form of a notice which accompanies the Equal Employment Opportunity Information Request form and is maintained separately from the application.
Applicant race/ethnic and sex information may be requested for affirmative action purposes. All applicants for positions are asked to identify themselves by race/ethnic group and sex on the Equal Employment Opportunity Information Request form. This is maintained separately from the application.