Can An Employer Ask a Job Applicant ... The Nuts & Bolts of Legal Preemployment Inquiries

Nuts & Bolts.jpegEmployers, HR professionals, and job applicants generally understand that there are questions that can be asked during the interview process and there are questions that cannot be asked because they violate state and federal employment statutes.

For example, under Michigan law, an employer may not “use a written or oral inquiry or form of application that elicits or attempts to elicit information concerning the religion, race, color, national origin, age, sex, height, weight, or marital status of a prospective employee.” MCL 37.2206.

While there is not a specific Federal law imposing such inquiries, certain inquiries may create an inference of unlawful discrimination if the employer cannot demonstrate a legitimate, nondiscriminatory reason for each challenged inquiry.

Preemployment Questions Do's and Don'ts

The following guide is intended to assist employers and employees in understanding what is a potentially discriminatory or otherwise an unlawful inquiry in the hiring process. This guide, however, is not a substitute for an attorney’s independent judgment and analysis:

  • Age: An applicant may lawfully be asked whether he or she is 18 years of age or older but only for the purpose of determining if the individual is of legal age for employment. It is, however, unlawful to ask the applicant’s age or date of birth because of age discrimination concerns. In this regard, problems may arise when an employer requires that an applicant produce a driver’s license because it discloses the date of birth and may reveal the race of the applicant). To avoid these issues, employers should make an offer of employment before making a copy of the applicant’s driver’s license. If driving is as a qualification for the position, the offer of employment should be contingent upon an applicant producing a valid drivers license.
  • Arrests and Convictions: An employer may lawfully ask if: (i) The applicant has ever been convicted of a crime (misdemeanor or felony). If so, the employer may ask when, where, and the nature of the offense; (ii) The applicant has ever been arrested for or charged with a felony; and (iii) There are any felony charges currently pending against the applicant. It is unlawful for all employers except law enforcement agencies to inquire regarding misdemeanor arrests that did not result in conviction.
  • Birthplace: Employers cannot lawfully ask (i) The birthplace of an applicant or (ii) The birthplace of an applicant’s parents, spouse, or other relatives; (iii) The applicant to produce a birth certificate, naturalization papers, or baptismal record.
  • Citizenship: An applicant may lawfully be asked if he or she is authorized to work in the U.S. But unless asked as part of the federal I-9 process to ensure that an illegal alien is not being hired, it is unlawful to ask (i) The applicant’s country of citizenship; (ii) If the applicant is a naturalized or native-born citizen; (iii) The date when the applicant acquired citizenship, or (iv) If the applicant’s parents or spouse acquired citizenship. A request for this information must be made after a conditional offer of employment has been made. The Immigration and Naturalization Service provides information for employers that lists the documents employers may review for I-9 purposes. It is also lawful to ask about languages the applicant speaks and writes fluently.
  • Disability: Employers may lawfully ask if an applicant is able to perform the essential duties of the job, with or without accommodation. It is, however, unlawful for employers to ask questions about an applicant's physical or mental condition if that condition is not directly related to the requirements of the specific job or if the answers are used to make employment decisions in violation of the Americans with Disabilities Act (ADA) or Michigan's corresponding statute, Persons with Disabilities Civil Rights Act (PDCRA). 
  • Education: While it is certainly lawful and appropriate to ask about an applicant’s academic, vocational, or professional education and the public or private schools the applicant attended, employers should be careful about asking for dates of attendance of high school or college because such information may implicate an applicant’s age.
  • Genetic information: Under both Michigan and federal law (Genetic Information Nondiscrimination Act of 2008, also called "GINA"), it is unlawful to ask about an applicant’s genetic information or to require the applicant to submit to a genetic test or to provide genetic information. Michigan law also makes it unlawful to acquire, directly or indirectly, any genetic information concerning an applicant or the applicant’s family. See MCL 37.1201(d), (e), and MCL 37.1202(1). GINA also prohibits employers from failing or refusing to hire any employee because of genetic information with respect to the employee. 42 USC 2000ff-1(a)(1). 
  • Height/Weight: Under both Michigan and federal law, it is unlawful to inquire about the applicant’s height or weight.
  • Marital status and children: Employers cannot lawfully (i) Require an applicant to provide any information regarding marital status or children; (ii) Ask if the applicant is single or married; (iii) Ask for the name of the applicant’s spouse; (iv) Ask if the applicant’s spouse is employed; (iv) Ask if an applicant has children. Employers may, however, lawfully ask if the company employs the applicant’s spouse.
  • Name: Employers cannot lawfully ask an applicant for their original name if it has been changed by court order or the applicant’s maiden name.
  • National origin: It is lawful to inquire into languages the applicant speaks and writes fluently. It is, however, unlawful to inquire into (i) The applicant’s lineage, ancestry, national origin, descent, parentage, or nationality unless pursuant to the federal I-9 process referenced above; (ii) The nationality of the applicant’s parents or spouse; or (iii) How the applicant acquired the ability to read, write, or speak a foreign language.
  • Photograph: Employers cannot lawfully require an applicant to submit a photograph before making an offer of employment.
  • Race or color: Employers cannot lawfully inquire as to the applicant’s complexion or skin color.
  • Religion or creed: Employers cannot lawfully inquire into an applicant’s religious denomination, religious affiliations, and religious beliefs. It is also unlawful to ask what church or parish an applicant attends, who the applicant’s religious or spiritual leader is, or what religious holidays the applicant observes. 

Aside from these areas of restrictions, employers should be mindful that where a discrimination claim is made, the employer will generally have the burden of proof to demonstrate that information sought during preemployment interviews was necessary for legitimate business reasons and is not used to make discriminatory hiring decisions. While seeking such information to evaluate an applicant’s qualifications for employment does not guarantee an employer will not ever be charged with discrimination, making sure that all information sought is job-related will significant increase an employer's odds for successfully defending a discrimination claim.

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