1. Recognizing Discriminatory Pre-Employment Inquiries
John M. Ybarra
Workforce System Equal Opportunity Officer
Kansas Department of Commerce
Disclaimer: The information contained herein is prepared in summary form for educational purposes and does not constitute legal advice which may often turn on specific facts.

2. What is a Pre-Employment Inquiry?
Employment Interview Questions
Employment Application Questions
Job Advertisement Language
Recruitment Brochure Language, etc.

3. Federal Anti-Discrimination Laws
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin.
The Americans with Disabilities Act prohibits discrimination against qualified individuals with disabilities.
The Age Discrimination in Employment Act protects individuals 40 years of age or older.
The Equal Pay Act protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.

4. What is Employment Discrimination?
Employment discrimination occurs when job applicants and employees are treated unfairly based on their race, color, ethnicity, gender, sex, national origin, religion, age, disability, or genetics.
Each of these categories is known as a “protected group” or “protected status.”

5. Disparate Treatment Discrimination
Intentionally treating applicants or employees from a protected group differently than others.
Examples:
Evaluating responses by black applicants differently than white applicants.
Testing female applicants differently than male applicants.
Asking job applicants about their past or current medical conditions, or requiring certain job applicants to take medical exams.

6. Disparate Treatment Illegally Screening Applicants
A company executive contacts an employment agency to hire a new administrative assistant saying she wants to interview candidates with excellent clerical skills who relate well with high level executives. The agency searches the resume database which produces 50 qualified candidates. To reduce this to a more manageable number the agency refines the search to eliminate candidates living in mostly Black or Latino zip codes.
This is Disparate Treatment and violates title VII of the Civil Rights Act.

7. Adverse Impact Discrimination
Neutral employment practices that unintentionally discriminate against a protected group. 
Examples:
Height and weight requirements
Educational requirements
Physical agility tests
How is this discriminatory though?

8. Adverse Impact Occurs…
When height and weight requirements unrelated to job performance exclude women and persons with disabilities.
When employers require an educational level that does not match the job duties and it negatively impacts persons of color.
When physical agility tests unrelated to job performance exclude women and persons with disabilities.

9. Valid Business Necessity Defense to Discrimination
A valid business necessity is a job requirement that excludes a particular group but is necessary for safe and efficient job performance.
“Job Related and Consistent with Business Necessity”
Examples:
Height requirements for pilots
Age requirement for FBI agents
Commercial pilots must have 500 flight hours and a college degree

10. Bona Fide Occupational Qualification Defense to Discrimination
A job requirement that can only be met by applicants of a certain sex, religion, age or national origin.
Examples:
A French Restaurant hires only French Chefs.
Only males can work as a men’s room attendant.
Employees must be 21 years old to serve alcohol.
Applicant must be of a certain religion to be a clergy member.
*Race and Color can never be a BFOQ.

11. Discriminatory Practices Yielding to Customer Racial Preference
ACME Home Care hires personal aides to provide in-home assistance to elderly persons. ACME has mostly white clients who have exclusively requested white aides. Gladys, an experienced African-American aide applies with ACME because it offers better pay. ACME wants to hire Gladys but decides not to because it believes its clients would not be comfortable with an African American aide.
The employer has violated Title VII because customer racial preference is not a BFOQ.

12. Job Title Language Inadvisable Acceptable
Barmaid…………………………………… Server, Cocktail Server
Bus Boy, Tray Girl……………………….. Busser, Cafeteria Worker
Cleaning Woman…………………………. Cleaning Assistant, Room Attendant
Draftsman…………………………………. Drafter, Auto CAD Specialist
Fireman……………………………………. Fire Fighter
Fisherman………………………………….Fisher
Foreman…………………………………... Supervisor
Handyman………………………………… Miscellaneous Repairer
Journeyman *……………………………...Journey Level
Leadman…………………………………... Crew, Shift or Team Leader
Longshoreman……………………………. Longshore Worker

13. Job Title Language Inadvisable Acceptable
Maid……………………………………….. Housekeeper
Maintenance Man………………………… Maintenance Worker
Policeman………………………………… Police Officer
Repairman………………………………… Repairer, Technician
Salesman, Saleswoman………………… Sales Representative, Sales Clerk, Sales Consultant
Stewardess, Steward……………………. Flight Attendant, Cabin Attendant
Waiter, Waitress………………………….. Server
Other Non-Discriminatory Options: Sex specific titles such as Guardsman, Horseman, Midwife, etc. may be used if accompanied by the designation “man or woman” or “male or female”.

14. Job Advertisement Language
Inadvisable Acceptable
Man, woman, girl, boy, lady…………….. Person, applicant, candidate, trainee, incumbent, staff, employee
Married, Single…………………………… No acceptable substitute
Cute, handsome, pretty,
clean cut, attractive…… Professional appearance, Employer has dress code
Non-smokers only…………………………Non-smoking environment
No criminal record,…………………………Employer does background check
No felonies
Recent graduate, college student………. College degree required, Internship
Mother, housewife……………………….. Part time, short hours
Young, energetic…………………………. Entry level, trainee, intern

15. Job Advertisement Language
Inadvisable Acceptable
Black, White, Minority
Colored, Oriental, Asian, Mexican…………….Applicant, candidate, incumbent
Must own a car………………………………….Must be able to arrive at work on time
Must be male, physically fit…………………… Able to lift 50 lbs.
Handicapped, crippled, retarded…………….. Person/People/Individual with disabilities, accessible entrance/bathroom, etc.
Must have # years experience………………...Successful, wide ranging,
considerable experience
Junior…………………………………………… Entry level
Senior…………………………………………… Mature attitude, approach, or understanding
No unemployed candidates considered…….. Not acceptable
Additional Acceptable Terms: Reliable, responsible, efficient, minimum wages, long hours, overtime, able to travel, willing to relocate, wide-ranging, considerable experience.

16. Age Inquiries Inadvisable Language
“Energetic” “High School” “Young, strong, dynamic”
“Youthful appearance”
“Persons over 50, 60, 70, etc. need not apply”
“Family Oriented”
“Maximum experience requirement of X number of years”
“Expected experience range of X to X number of years”

17. Age Inquiries
Chris, a 65 year old man, saw a newspaper ad for a cashier at Groceries R Us. The advertisement states:
“Applicant must be young and energetic and possess excellent customer relations skills. Applicants who are selected would be required to stand for long periods of time and lift pounds.”

18. Age Inquiries
Chris contacted the EEOC who determined the ad to be discriminatory. By using the word “young” the ad indicates a specific preference based on age which would deter many qualified older persons from applying.
Deleting the word “young” would probably make the ad acceptable as persons of all ages can be energetic and possess excellent customer service skills.
The requirements to stand for long periods and to lift pounds are not age related and appear to be consistent with business necessity.

19. Sex/Gender Inquiries “Only men/women wanted”
Inadvisable Language
“Only men/women wanted”
“Seeking waitress” (should say server, wait staff, etc.)
Job Advertisements must not express a sex preference unless sex is a bona fide occupational qualification for the job.

20. Language/National Origin Inquiries
Inadvisable Inquiries
“English speaking applicants only”
“Is English your first language?”
Requiring the ability to read, write, or speak English, unless it substantially relates to job duties, can be discriminatory.
The language level sought should not exceed the level needed to perform the job. The EEOC presumes that English-only policies that apply at all times violate Title VII of the Civil Rights Act.

21. English-Only Policies
An English-only rule may be used if necessary to promote safe and efficient business operation such as in the following situations:
Communications with customers, co-workers, or supervisors who speak only English.
Emergency situations and cooperative work assignments which require a common language to promote safety and efficiency.
English only policies should apply only to specific workplace situations. Employees should generally be allowed to speak other languages during breaks, meals, etc.

22. Health/Disability Inquiries
Inadvisable Language
“Must not have a disability”
“Must not be predisposed to a disease or illness”
“Have you undergone a psychiatric evaluation?”
“Do you have any disabilities?”
“How much alcohol do you drink each week?”
“Have you ever filed for workers compensation?”
Employers may not ask applicants if they have a disability or require them to take a medical exam prior to extending a job offer.

23. Health/Disability Inquiries
Employers may ask the following questions to determine whether an applicant can perform specific job functions. These questions should be asked of every applicant.
Can you meet the essential functions of this job with or without reasonable accommodation?
Describe how you would perform this job with or without reasonable accommodation.
Can you meet the attendance requirements of this job?

24. Discriminating Against the Unemployed
Inadvisable Language
“Must be currently employed”
“Only currently employed candidates will be considered”
Using current employment as a selection criteria could adversely impact women, minorities, and individuals with disabilities.

25. Arrest Record Inquiries
Inadvisable Language
“Have you ever been arrested?”
“How many times have you been arrested?”
“Must have no arrest record”
There is no law that prohibits employers from inquiring about arrest and conviction records. However, the EEOC has determined that using such records as an absolute bar to employment has an adverse impact on some racial and ethnic groups.

26. Arrest Record Inquiries
Since an arrest alone does not necessarily mean that an applicant has committed a crime, the employer should not assume the applicant committed the offense.
The employer should allow the applicant to explain the circumstances of the arrest(s) and make a reasonable effort to determine whether the explanation is reliable.
The EEOC states that where it appears the applicant engaged in the conduct for which he/she was arrested, and that conduct is job-related and relatively recent, exclusion is justified.

27. Conviction Record Inquiries
Convictions that occurred within a reasonable amount of time prior to the application may be inquired about and considered if the employer can show that the conviction is directly related to the position.
Employers should consider these questions:
Did the applicant actually commit the offense?
What is the nature and gravity of the offense?
How long ago was the offense?
What is the nature of the job being applied for?

28. Arrest/Conviction Records
Inadvisable Language
“No felonies”
“No felonies or violent misdemeanors”
“Must have clean criminal history”
Acceptable Language
“Must be able to pass a criminal background check”
“A conviction record will not necessarily be a bar for employment”

29. Drivers License Inquiries
Inadvisable Language
“Must have a drivers license”
Asking for a driver’s license when the job duties don’t involve driving can be discriminatory.
How someone gets to work is not a job related requirement because people can get to work using a variety of methods.
Arbitrarily excluding applicants without a driver’s license may have an adverse impact on persons with disabilities and persons of color.

30. Car Ownership Inquiries
Inadvisable Language
“Must own a car”
Requiring applicants to own a vehicle, unless the job requires use of the vehicle, can be discriminatory.
Car ownership is not a valid test for the candidate’s reliability or ability to get to the work site.
Arbitrarily requiring a vehicle may have an adverse impact on persons with disabilities and/or some persons of color who statistically have lower incomes and may use other transportation.

31. Military Service Inquiries
Inadvisable Language
“Must have been honorably discharged from the military.”
The EEOC recommends that employers not have a policy of rejecting applicants with less than an honorable military discharge.
If employers inquire about military discharge they should include a statement such as:
“Dishonorable discharge is not an absolute bar to employment and other factors will affect the final hiring decision.”

32. Scams/Fraud Questionable Language
“Fund transfer agent” “package forwarding” “Wiring funds”
“Guaranteed job” “Immediate Hire”
“Multi-Level Marketing” “Sports Marketing”
“Must buy products” “Must pay fee to apply/qualify” “Send check or money order”
Salary listed in foreign currency
Contact or from a foreign country

33. Equal Employment Opportunity
Employers should state on applications that they are an “equal opportunity employer” and that all qualified applicants are encouraged to apply, regardless of race, color, religion, national origin, ancestry, sex, disability, age, or genetics.
ACME Inc. is an equal opportunity employer which does not discriminate on the basis of race, national origin, religion, age, color, sex, disability, veteran’s status, genetics, or any other characteristic protected by local, state or federal laws, rules, or regulations.

34. Affirmative Action Statements
ACME Inc. maintains an affirmative action plan through which it makes good faith efforts to recruit, hire and advance in employment qualified minorities, females, disabled individuals and Vietnam era and special disabled veterans.
Affirmative Action Employer: Females and minorities are encouraged to apply.

35. “Describe the job, not the person” “If it’s not job related-don’t ask”
Rules of Thumb
“Describe the job, not the person”
“If it’s not job related-don’t ask”

36. U.S. Department of Justice Civil Rights Division
Resources
U.S. Equal Employment Opportunity Commission
Kansas Human Rights Commission
U.S. Department of Justice Civil Rights Division
Worker Hotline: • Employer Hotline:
John M. Ybarra
Workforce Center Programs Equal Opportunity Officer