Hiring employees can be a difficult process, made even more difficult by protections concerning questions that can and cannot be asked during an interview. Background checks can provide information about prospective employees that can help in the hiring decision, but the results of a background check cannot always be used to refuse to hire someone.
Hiring Employees: The Interview
The interview is likely the first time an employer will meet a potential employee. It is an excellent opportunity to gather information about the prospective employee; however, some questions must be avoided.
Questions involving race may only be asked if there is a proven business need to know the applicant’s race.
Example: Hiring for affirmative action purposes.
As height and weight are often tied to nationality and cultural differences, questions pertaining to either are typically not allowed. The exception is when the applicant’s height and weight are relevant to the job for which they are applying.
Example: Pilots of military aircraft need to be a certain height to properly fit into the cockpit.
Questions regarding financial status, including credit rating inquiries and questions about property ownership and bank accounts, should not be asked because these types of questions often put minorities and women at a disadvantage. However, questions regarding financial status may be asked if it is relevant to the position.
Example: Banks may run credit checks on potential employees that will be handling money to avoid a higher risk of theft.
Religion and personal beliefs may not be brought up during an interview, unless the company conducting the interview has obtained a federal exemption because it is a religious corporation, institution, or society.
Example: A religious university that is hiring a professor may ask about an applicant’s religious beliefs.
Questions asked of applicants involving their marital status and number of children are best avoided because these types of questions often put women at a disadvantage. Asking about pregnancy, number of children and future plans to have children, marital status, and a spouse’s work situation are almost always viewed as discriminatory.
Questions regarding family status may only be asked after an offer of employment has been made, and only for the purpose of providing this information to an insurance company on the employee’s behalf.
An applicant’s citizenship status may not be asked until after an offer of employment has been made.
Asking an applicant whether they have medical problems or a disability is not allowed during an interview. However, it is acceptable to ask a prospective employee if they need accommodations to complete the job. Any medical questions or exams made after an offer of employment has been extended should relate to verifying an employee’s ability to complete their job with accommodations.
Hiring Employees: The Background Check
If an employer decides to require applicants to complete a background check, the background check must be conducted the same way for all potential employees, regardless of ethnicity or religion. This means that employers are not allowed to only require a background check of an applicant belonging to a specific ethnic group or religion, such as Middle Eastern or Islam.
While employers are permitted by law to complete a background check before making a hiring decision, there are restrictions on how the information obtained can be used:
- Records that indicate the prospective employee has been arrested do not necessarily mean that the person did, in fact, commit a crime, and an employer must give the applicant an opportunity to explain their criminal record.
- If the hiring employer does think that the arrests or convictions listed on an applicant’s background check are due to the applicant’s criminal conduct, refusal to hire the potential employee is not necessarily justified. It is only justifiable if the employer can establish that the applicant will not be able to perform their job duties in a trustworthy manner.
Before a background check in conducted, the potential employee must be notified in writing.
When It’s Not Okay To Refuse To Hire Someone
The information above covers many of the instances when the information gathered in an interview or through a background check cannot be used to refuse to hire someone. A recap of when it is not acceptable to refuse to hire someone, as well as additional situations, are as follows:
- An applicant’s age, weight, height, and familial status may not be used to refuse to hire the person, unless there is a verifiable reason to do so.
- Employers may not refuse to hire someone solely based on the applicant’s pregnancy.
- Many states have enacted laws protecting smokers from discrimination. Employers in these states may not refuse to hire someone based on the fact that they smoke.
- Unless arrests and convictions discovered in a background check give the employer a verifiable reason to find the applicant untrustworthy in regards to completing the job, these items may not be used to refuse to hire a person.
- An employer may refuse to hire someone because of visible tattoos or piercings only if there is an established company policy regarding appearance. Refusal to hire without a company policy in place may result in legal recourse.
- Only organizations with a federal designation as being a religious entity may refuse to hire someone based on their religion.