Avoiding “Loaded” Employment
Application and Interview Questions
That May Lead to Discrimination

The University of Wisconsin-Platteville is required by law and federal and state regulations to ensure that it does not discriminate against applicants for employment. This policy of nondiscrimination applies to all phases of the employment process and prohibits discrimination based on race, sex, age, religion, national origin, sexual orientation, disability and status as a veteran.

You must observe the University’s nondiscrimination policy when developing interview questions and conducting the interview. Should you ask discriminatory questions during interviews, intentionally or unintentionally, you are providing the opportunity for a lawsuit against the university regardless of the effect of the responses on the hiring decision.

The key to lawful employment inquiries is to ask only about those areas that will provide information as to the person’s ability to do the job, with reasonable accommodation. You are at risk when you make inquires related to any of the subjects discussed below.

It is equally important to remember, however, that this list is concerned only with the potential unlawful use of information. Quite different considerations are involved when the purpose of seeking information is to carry out an affirmative action program. If some of the information discussed here is needed for post-employment purposes, it can be obtained after the applicant has been selected for employment.

Legal Problems with Comments that Could Be Taken as Promises

In addition to discrimination charges, the other legal problem supervisors can run into when interviewing is comments that could be construed as promising employment for a certain length of time or promising that you will treat an employee a certain way. This usually happens in an honest effort to describe the workplace in its best light. But comments like, “We never fire anyone who is getting the job done” can cause problems later on if the company must lay the employee off.

Lawful and Unlawful Questions,
with References to the Law
Name
  Lawful Ask first, middle, last name
Have you ever used another name?
Is any additional information relative to a change of name or use of an assumed name necessary to enable a check of your educational or work record?
Unlawful What is your maiden name?
Requirements of prefix Mr., Miss, Ms., Mrs.
Inquiries about names which would indicate national origin
Inquiries regarding names changed by marriage, divorce, court order, etc.
Address, Residence
Lawful Address and length of residence in this city/state
Unlawful Questions regarding foreign addresses, which would intentionally or unintentionally indicate national origin.
Whether applicant owns or rents home or lives in an apartment.
Names and relationships of persons with whom applicant resides.
Sex, Gender, Marital Status, Family
Law In the absence of proof of business necessity, Title VII and Wisconsin law prohibit employers from having one hiring policy for women with preschool children and another for men with preschool children.
Lawful Statement of policy regarding work assignment of employees who are related.
Whether applicant can meet specified work schedules. It is acceptable to state, “The position requires extensive travel. Can you handle traveling for about 8 days per month?” or “This position requires dependable job attendance and frequent last-minute overtime. Can you meet these requirements?”
Unlawful Questions that indicate applicant’s sex, marital status, number or ages of children or dependents or provisions for child care. Questions regarding pregnancy, child bearing or birth control. Name or address of relative, spouse or children of adult applicant. No M or F on application.
With whom do you reside?
Do you live alone?
Do you have any children?
How many children do you have?
How old are your children?
What kind of child care arrangements have you made?
Surely you didn’t do all this with children, did you?
All questions related to pregnancy or methods of family planning.
What type of contraceptive do you use?
Do you plan to have children?
As a woman, do you feel you can do the job?
We have no women on staff; do you think you could fit in?
Are you married, single, divorced, widowed or separated?
You’ve moved a lot; is your husband in the military?
What does your spouse do for a living?
Note The purpose of these questions is to explore what the employer believes to be a common source of absenteeism and tardiness. One should not explore this area in such an indirect way and in a way which traditionally applies only to women. There are a number of common causes of absenteeism and tardiness which affect both men and women and which would be worthy of exploration if this is a matter of substantial concern to the employer.
Height and Weight
Lawful Can you work within the confines of a two-foot-wide aisle?
Can you place packages in compartments that are six feet above the floor?
Unlawful Questions regarding height and weight are considered unlawful unless based on a Bona Fide Occupational Qualification, and such instances are rare.
Are you at least _______ tall?
Do you weigh less than _______?
Race, Color, Ethnicity
Lawful None
Unlawful Questions as to applicant’s race or color, complexion or color of skin, eyes or hair. Direct or indirect reference to race, color or racial groups.
Inquiry into color of eyes, hair.
To what race do you belong?
Are both your parents white?
What is your ancestry?
What is the race of your ancestry?
Religion
Law The Wisconsin Fair Employment Law and Title VII of the Civil Rights Act of 1964 both prohibit discrimination on the basis of religion and require accommodation of a person’s religious beliefs and practices. Both laws exempt employers from compliance who can demonstrate that they are unable to reasonably accommodate an employee’s (or prospective employee’s) religious observance or practice without undue hardship on the conduct of the business.
Lawful Statement by employer of regular days and hours to be worked. If a question about Saturday and Sunday work is asked, the employer should indicate that a reasonable effort is made to accommodate the religious needs of employees.
Unlawful On what days do you observe religious meetings or holidays?
Does your religion prevent you from working weekends or holidays?
Are you available for Saturday or Sunday work? This question may discourage applications from persons of certain religions which prohibit their adherents from working on Saturday or Sunday.
To what church do you belong?
Is that a Star of David you are wearing?
Do you belong to any religious organizations?
Was your schooling in public schools or in church schools?
National Origin, Ethnicity, Birthplace, Citizenship
Law There are Federal guidelines on discrimination because of national origin which contain the following statement: “Because of discrimination on the basis of citizenship has the effect of discriminating on the basis of national origin, a lawfully immigrated alien who is domiciled or residing in this country may not be discriminated against on the basis of his citizenship,” unless national security requirements mandated by a federal statute or executive order authorize otherwise. State and federal courts have recently declared invalid laws in several states which exclude non-citizens from public employment. Both Wisconsin and federal laws prohibit discrimination on the basis of national origin. Asking of which country the applicant is a citizen, makes it possible to discriminate on the basis of a particular national origin.
Lawful Stating that all offers of employment are contingent upon verification of identity and work authorization in the United States.
Stating that UW-Platteville hires only individuals lawfully authorized to work in the United States.
Are you legally eligible to accept work and remain in this country?
What language(s) do you speak, read, or write?
Unlawful Questions as to citizenship, nationality, lineage, ancestry, national origin, descent, parentage of applicant or applicant’s parents or spouse.
What is your mother tongue or native language?
Where did you get that accent?
What language do you commonly use?
How did you acquire the ability to read, write or speak a foreign language? How did you learn so many languages?
Are you a U.S. citizen?
Where were you born?
Where were your parents (grandparents) born?
In what country were you born?
Of what country are you a citizen?
What do you think about the Middle East situation?
Asking whether other members of the applicant’s family are U.S. citizens.
Questions concerning ancestry or birthplace of parents or spouse.
Questions concerning associates or other relatives from foreign countries.
Require proof of right to work in the U.S. prior to employment.
Age
Law The Wisconsin Fair Employment Law and the Federal Age Discrimination in Employment Act prohibit discrimination on the basis of age. Wisconsin prohibits discrimination on the basis of age against individuals who are age 40 and over, while federal law covers ages 40 through 70.
Lawful Generally none. However, you may ask the following:
Are you at least 18 years old?
If you are under age, do you have the necessary work permit?
Unlawful Age, birth date, questions that might identify the applicant’s age, especially over age 40. Answers to these questions could be used unlawfully.
How old are you?
What is your date of birth?
When did you graduate from high school?
Has college changed much since you were a student?
When do you plan to retire?
Education and Experience
Lawful Schools attended
Degrees acquired
Transcripts, if required of all applicants for similar work
Inquiries regarding previous work experience.
Do you have the required certification/license to perform this job? If not, can you obtain them?
Do you have a driver’s license? (Where driving is a legitimate job requirement.)
Unlawful Questions regarding national, racial, or religious affiliation of schools attended.
Note While an employer may wish to inquire as to an applicant’s educational history, care would be taken that only clearly job-related education is considered when a hiring decision is made. While a law degree is necessary for a lawyer, there are no positions where a general college degree is a necessary requirement. Rather than asking about a degree or diploma, consideration should be given to how the applicants can actually demonstrate that they have the skills necessary to function in the job. Consideration of degrees or formal education in making hiring decisions may be unlawful when there is a disparate impact on some groups, such as minorities, and the employer is unable to show the degree or education is necessary for the performance of the job.
Photograph
Lawful May be required after hiring if necessary for business purposes.
Unlawful Requirement that applicant attach photo to application.
State that attaching photo is optional.
Disability and Health
Lawful How well can you handle stress?
Can you perform _______ (a specific job function, such as loading three-pound boxes of paper into the copier)?
Can you do all the functions of this job, with or without accommodation?
Describe (or demonstrate) how you would perform these functions. (You can ask this question only if all applicants are so asked or if the applicant has indicated the need for accommodation, has revealed a disability, or has a clearly observable disability that an employer could reasonably expect to affect his/her ability to perform the functions.)
Can you meet the attendance requirements of this job?
Unlawful Questions seeking information on the applicant’s prior or current illnesses, medication, medical treatment, substance abuse, disabilities, injuries, or Workers’ Compensation claims are prohibited, as are all inquiries into the applicant’s family medical problems.
How is your health?
How is your family’s health?
Have you ever had surgery?
Do you have any disabilities or physical defects?
Do you have a disability (or physical or mental condition, impairment, or defect) that would substantially impair your ability to perform the essential functions of this position?
What is the nature of your disability?
Have you ever been treated for any of the following diseases...?
Do you have AIDS? Do you have asthma? Diabetes? Heart problems? Jaundice? Boils? -- and similar specific questions about medical conditions.
Have you seen a doctor in the past __ years?
Do you have any disabilities or physical problems that cause you to visit physicians regularly?
Will you require leave for medical treatment during your employment? If so, explain.
Are you able to stand or walk?
How many days of sick leave did you take last year?
How many days were you sick last year?
Have you ever been injured on the job?
Can you provide medical records?
Do you need any special accommodations?
Will you need accommodation to perform this job?
What medications are you currently taking?
Have you used illegal drugs in the past 12 months?
Have you ever been treated for drug dependency?
Have you ever been treated for an alcohol problem?
Have you ever been addicted to drugs?
Have you sought treatment for an inability to handle stress?
Have you ever been diagnosed with or received treatment for a mental health condition?
What is your opinion of people who get psychological counseling?
You can require medical examinations prior to employment only if required of all applicants and necessary to assess ability to perform job safely and effectively.
References, Friends or Relatives Working for Us
Lawful Names and addresses of persons willing to provide character or professional references for applicant.
By whom were you referred for this position?
Explain conflict of interest rules and ask if these affect applicant.
Unlawful Names and addresses of applicant’s relatives.
Require references from pastor, priest, rabbi, or other religious associates.
Questions of applicant’s former employers or acquaintances that elicit information specifying applicant’s color, race, religious creed, national origin, ancestry, any physical or mental disability, medical condition, marital status, age, or sex.
Note If ask about friends or relatives working for us, may reflect a preference for friends or relatives of present employees. Such a preference would be unlawful if it has the effect of reducing employment opportunities for women or minorities. It would have this unlawful effect if an employer’s present work force differs significantly in its proportion of women or minorities from the population of the area from which workers are recruited. This question may also reflect a rule that only one partner in a marriage can work for the employer. There is a growing recognition that such a rule hurts women far more often than men and that the rule serves no necessary business purpose.
Economic Status
Lawful None
Unlawful Questions about applicant’s current or past assets, liabilities or credit rating, charge accounts, bankruptcy, garnishments, or other indebtedness.
Has fidelity bond ever been refused to you?
Do you own a home?
Have you ever filed for bankruptcy?
Have you ever had your wages garnished?
Do you own an automobile?
Note Because minority persons, on the average, are poorer than whites, consideration of these factors by employers has an adverse effect on minorities. Answers are almost always irrelevant to performance of the job in question. Information requests of this nature could probably be shown to be unlawful unless clearly required by considerations of business necessity.
Questions concerning fidelity bonding should only be asked when applicants are applying for a position requiring bonding. Even then the information should be used with care, taking into consideration factors such as the length of time since the refusal and the prospective applicant’s current bondability.
Military History
Lawful Questions about relevant knowledge, skills and abilities acquired during applicant’s military service.
Experience/education in military services which would relate to the job applicant is seeking.
Unlawful General questions about military service, such as dates, type of discharge, military disciplinary record, or service in a foreign military service.
What type of discharge did you receive?
Have you had any after effects from serving in war?
What is your military discipline history?
How do you alleviate anxieties and pressures associated with your military experience?
Criminal Record
Law Arrests – Wisconsin law prohibits inquiries about arrest records. The only arrest record that may be considered is one involving a pending charge. A past arrest that did not lead to a conviction should not be given any consideration since the person was not proven guilty. If an applicant has a pending arrest that is related to the job to be performed, an employer can either suspend judgment until the court decision, if possible, or advise the applicant to reapply when the pending charge has been resolved. An employer should never reject an applicant outright, or discharge an employee because of a pending arrest. Federal law does not specifically address arrest records, but covers this area when inquiries about arrests tend to exclude members of particular minority groups.
Convictions – The Wisconsin Fair Employment Law prohibits an employer from refusing to employ a person with a conviction record unless the circumstances of the conviction substantially relate to circumstances of the particular job. If the application form makes any inquiry about convictions, it should indicate that a criminal record does not constitute an automatic bar of employment and will be considered only as it relates to the job in question. Any person who evaluates information concerning criminal records should be given careful instructions regarding the limited ways in which it may be used.
Lawful Have you ever been convicted of a felony or misdemeanor?
Unlawful Any questions concerning arrests because the person is not judged guilty by an arrest.
Have you ever been arrested?
Note Convictions cannot be the grounds for automatic rejection. You should consider the type, number and recentness of convictions and the relationship to the job in question. You can ask about convictions, but not just arrests. A conviction may still not be a reason for non-selection if it has no bearing on job applied for or if it occurred in the distant past. On the other hand, conviction of a crime for which the individual’s presence in the workplace would cause disruption or discontent is considered job-related.
Organizations
Lawful Please list job-related organizations, clubs, professional associations to which you belong. You may omit those which indicate your race, religious creed, color, national origin, ancestry, sex or age, if desired.
Offices held in professional organizations.
Unlawful List all organizations, clubs, societies and lodges to which you belong.
To what nonprofessional organizations do you belong?
Requesting other information about membership in organizations if this information would indicate race, religion, or national origin of applicant.
In Case of Emergency
Lawful Names of persons to be notified in case of emergency.
Unlawful Names of relatives to be notified in case of emergency.