EEOC Statements on Pre-Employment Inquiries

“Although Title VII does not make pre-employment inquiries concerning race, color, religion or national origin per se violations of the law, the Commission’s responsibility to equal employment opportunity compels it to regard such inquiries with extreme disfavor.”

“ … in the investigation of charges alleging the commission of unlawful employment practices, the Commission will pay particular attention to the use by the party against whom charges have been made of pre-employment inquiries concerning race, religion, color, or national origin, or other inquiries which tend directly or indirectly to disclose such information. The fact that such questions are asked may, unless otherwise explained, constitute evidence of discrimination, and will weigh significantly in the Commission’s decision as to whether or not Title VII has been violated”

Previous research studies examining employment applications by date of study

Study

Results Type of Application & Sample

Wallace & Vodanovich (2002)

Fortune 500 sample = 2.99 inappropriate itemsCustomer Service sample = 5.35 inappropriate items

191 Fortune 500 Finance/Accounting applications109 Customer service applications (e.g., retail, food service)

Wallace, Tye, & Vodanovich (2000)

Average of 4.2 inappropriate items with most problematic: salary, age, driver’s license

42 online state general employment applications

Vodanovich & Lowe (1992)

Average of 7.4 inappropriate items with most problematic: age, convictions, & salary

Retail; 46 categories

Jolly & Frierson (1989)

25% of 20 categories were problematic (e.g., salary)

283 random applications from American Society of Public Administration members; 20 categories

Coady,(1986)

Most problematic: improper use of EEO worksheets

50 state libraries; 25 categories

Lowell & DeLoach, (1982)

Most problematic: military service & age

50 US firms; 17 categories

Burrington, (1982)

Average of 7.7 inappropriate items

50 general state applications; 30 categories

Miller, (1980)

Average of 9.74 inappropriate items

151 of Fortune 500; 72 categories

Note: Adapted from Wallace, Tye, and Vodanovich, 2000.

Category Inadvisable

Legitimate

Inadvisable

Legitimate

Desired Salary 66.1 15.0 20.8 5.2

Personal E-Mail Address * 49.5 0.0 88.0 2.5

Lowest Acceptable Salary 46.8 19.2 25.0 1.2

Graduation Date 33.9 3.1 54.2 3.5

Work Schedule 33.0 36.2 1.6 0.6

Conviction (w/o disclaimer) 26.6 56.8 3.6 38.2

References 26.6 42.4 3.1 23.6

Gender (w/o EEO disclaimer) 25.7 38.0 20.3 19.5

Race (w/o EEO Disclaimer) 24.8 25.1 15.1 18.9

Driver’s License 22.9 16.2 1.6 0.8

Relatives 21.1 5.1 2.6 0.0

EEO Worksheet 16.5 8.1 14.1 25.6

Handicap (w/o EEO disclaimer) 14.7 3.2 3.6 15.6

Age (w/o EEO disclaimer) 14.7 3.2 3.1 15.8

Language Fluency 11.9 1.5 3.1 0.7

Emergency Contact 7.3 0.0 .5 0.0

Marital Status 3.7 0.8 5.7 0.3

Personal Web Page Address 3.7 0.0 16.7 0.0

National Origin (w/o EEO disclaimer) 2.8 1.8 5.7 23.1

Customer Service Fortune 500

Percentage of most commonly identified inadvisable application blank items by sample

[from Wallace & Vodanovich (in press) Public Personnel Management]

Height and Weight

• EEOC and the courts have ruled minimum height and weight requirements to be illegal if they screen out a disproportionate number of minority group individuals (e.g. Spanish surnamed or Asian Americans) or women, and the employer cannot show that these standards are essential to the safe performance of the job in question

Marital Status, Number of Children and Provision for Child Care

• Questions about these things may be a violation of Title VII if they are used to deny or limit opportunities for female applicants

• It is a title VII violation for employers to inquire about child care arrangements to only their female applicants

• Supreme Court ruled that it is unlawful for employers to have different hiring practices for men and women with school-aged children

• Unacceptable Question: Do you plan on having any children?

• Information needed for tax, insurance or social security can be obtained after employment

English Language Skill

• A violation of Title VII results when:• The use of an English language proficiency test

has an adverse impact upon a particular minority group and

• English language skill is not a requirement of the work to be performed

Educational Requirements

• Requirement of high school diploma discriminatory when:• It operates to disqualify groups protected under Title VII at

a higher rate than other groups (e.g., Griggs case)• There is no evidence that the requirement is significantly

related to job performance or business necessity• Unacceptable question: What year did you graduate from

high school?• Acceptable question: What schools (high school,

undergraduate, graduate) did you attend?

Friends or Relatives Working for the Employer

• Information regarding these things is not relevant to applicant’s competence

• Unlawful if it indicates that employers are giving preference to applicants who have friends or relatives of the current employees

• Unlawful if the preference would reduce or limit opportunities for women or minority group members

• Nepotism policies which prohibit or limit opportunities for one’s spouse or relative may be illegal if it has an adverse impact on employment opportunities for man or women as a group

• Unacceptable question: Do you have any relatives working for this company?

• Acceptable question: If a minor, what is the name of your parent or guardian?

Arrest Records

• Making employment decisions on the basis of arrest records involving no subsequent convictions has a disproportionate effect on some minority groups because they are arrested more than whites

• Unlawful without proof of business necessity• Merely requesting arrest records discourages

minority applicants from applying and is illegal• Unacceptable question: Have you ever been

arrested?

Conviction Records

• Convictions don’t constitute automatic rejection and an employer may give fair consideration to the relationship between the applicant’s conviction and their ability to perform the job in question

• Cause for rejection if number and nature make applicant unsuitable for the job

• A statement should accompany inquiries stating that convictions aren’t automatic bar to employment

• Factors such as age, time of offense, seriousness of violation and rehabilitation considered

• Acceptable question: Have you ever been convicted of any crime? If so, please explain.

Discharge from Military Service• Making honorable discharge from the military an

employment requirement has a disparate effect upon minorities and may be a violation of Title VII

• Employers should avoid inquiries about from military unless they can show business necessity

• One federal district court has held that an employer may inquire about an applicant’s military service record if it is not used in hiring, but used to decide whether further investigation is needed

• If inquiry is made then employer should provide a statement that dishonorable discharge is not an absolute bar to employment

• Unacceptable question: What type of discharge did you receive from the U.S. Navy?

• Acceptable question: What were your duties in the U.S. army?

Age• ADEA prohibits discrimination based on age with

respect to individuals who 40 years old or older• Employment applications that use this information

are closely scrutinized to ensure that they are not in violation of ADEA

• Permissible when age requirement is BFOQ or based reasonable factors other than age

Citizenship

• Consideration of an applicant’s citizenship may constitute evidence of discrimination on the basis of national origin

• Lawfully immigrated aliens with legal eligibility to work may not be discriminated against on the basis of citizenship except in the interest of national security

• If states have enacted laws prohibiting non-citizens their laws are superceded by Section 708 of Title VII

• Unacceptable question: That’s a nice accent, where were you born?

• Acceptable question: Are you a citizen of the U.S.? If not, do you have a work permit?

Economic Status

• Rejection of minority applicants because of poor credit rating has a disparate impact on minority groups and has been found unlawful unless business necessity can be shown

• Inquiries about an applicant’s financial status, such as bankruptcy, car ownership, rental, or ownership of a house, length of residence at an address, or past garnishment of wages, may violate Title VII if used to make employment decisions

• Unacceptable question: Please list your credit references.

• Acceptable question: May I contact your previous employer?

Availability for work on weekends or holidays

• Employers have obligation to accommodate employees’ religious beliefs unless it poses undue hardship

• Such inquiries have an exclusionary effect on persons practicing certain religious beliefs and

• shouldn’t be asked unless the employer can show that the questions have not had an exclusionary effect on its employees who need accommodations for their religious beliefs, that the questions are otherwise justified, and that there are no alternative procedures which would have a lesser exclusionary effect

• Unacceptable question: Would you be absent for any religious holidays?

• Ask later; make reasonable accomodations

Data required for legitimate business purposes

• Data on marital status, number and age of children, and other similar issues which could be used in a discriminatory manner but which are necessary for insurance should be obtained after employment

• Tear-off sheets with the above information are permitted but only for purposes unrelated to selection

• In an investigation of discrimination, the burden of proof is on employer to show that answers to questions on application forms or in oral interviews are not used in hiring decisions in a discriminatory manner

• It is in employer’s own self-interest to carefully review all procedures used in screening applicants, eliminating or altering any not justified by business necessity

• Unacceptable question: To what clubs or organizations do you belong?

• Acceptable question: What organizations do you belong, excluding those that indicate religion, national origin etc.

Frequency of Common Inappropriate Application Blank Questions

Item Not appropriate Worded Appropriate Not asked

Past salary 98.9 0 1.1

Minimum salary 72.7 0 27.2

Reference source 59.1 0 40.9

Age 54.5 37.5 8.0

Information about relatives

50.0 10.2 39.8

Conviction records 43.2 28.4 28.4

Health 40.9 2.3 56.8

Military service 30.7 30.7 38.6

Marital status 27.3 0 72.7

Emergency contact 25.0 43.2 31.8

Time in residence 23.9 0 76.1

Physical desc., photo 19.3 0 80.7

Rent or own 18.2 0 81.8

Handicap 17.0 6.8 76.2

Organizations 15.9 21.6 12.5

Work schedule 13.6 63.6 22.7