What can an employer ask about in a job interview?
During the hiring process an employer will often require an employee to fill out an application or come in for an in-person interview. On these applications or in an interview, what are the kinds of questions an employer can ask? Can an employer ask about your disability or age?
Generally, an employer should ask only job-related questions—those questions that are bona fide job qualifications. These questions should be limited to information the employers need to know, and in fact asking questions that may be discriminatory raises the suspicion that the employer is engaging in discriminatory activity. If the employer did not need to know or did not base its hiring decision on race, for example, then why did it ask?
For example, the Americans with Disabilities Act prohibits an employer from discriminating against an applicant based on his disability. Under the ADA, an employer cannot ask if an applicant has a disability that interfere with his job performance, cannot ask about an applicant’s health status or medical history, and cannot require an applicant to submit to a medical examination before offering him the job. Impermissible questions include “How many days were you sick last year?” “Do you have asthma?” and “What prescription drugs are you taking?” However, if the disability is an obvious one or the applicant discloses that he has a disability, an employer may be allowed to ask limited questions about the need for reasonable accommodations.
Similarly, an employer cannot ask an applicant about his workers’ compensation claims history or prior occupational injuries and cannot refuse to hire someone based on that history unless the applicant is a direct threat to himself or others.
Federal statutes and the Texas Commission on Human Rights Act prohibit a wide range of discriminatory practices in employment, including in the hiring process. Asking an applicant about a status protected by one of these statutes may give rise to a claim for employment discrimination.
For example, the Age Discrimination in Employment Act protects those over forty years old from discrimination based on age. Questions about an applicant’s age are usually improper except where age is a bona fide occupational qualification (e.g., an airline pilot). Asking about an applicant’s age directly or indirectly is unlawful, including asking for the applicant’s date of birth or when an applicant graduated from high school.
Further, Title VII and the Texas Commission on Humans Rights Act prohibit discrimination based on race, religion, gender, and national origin. Race is never a bona fide occupational qualification, and something employers should never ask about. This includes employers asking for a picture of the applicant. Similarly, employers should not ask about an applicant’s religious practices. This includes indirect question such as those about an applicant’s availability to work at certain times or on certain days because these questions tend to exclude applicants with certain religious practices.
Employer also cannot ask about family and marital status. These questions, including those concerning child care arrangements and plans to start a family, are often used to discriminate against women and are prohibited by Title VII. For example, an employer cannot ask a female applicant if she is pregnant or is trying to become pregnant or if her having children will interfere with her ability to perform her job. Similarly, an employer cannot ask an applicant about his citizenship because this could be used as evidence of discrimination based on national origin. However, an applicant may be asked to prove his U.S. citizenship after he has been offered the job.
There are also limits on when and under what circumstance an employer can inquire about an applicant’s criminal and financial history.