At my 10/6/06 3 hour employment law seminar for the Chicago Business Minority Development Council and Chicago Minority Business Opportunity Center’s Corporate Bridges event, I provided participants with a 14 page handout which summarizes 55 federal, state (Illinois) and local (Chicago and Cook County) labor and employment laws.

Additionally, my handout contains information concerning the probability of encountering an employment related agency complaint or lawsuit, the possible cost of such a complaint or lawsuit, what to ask and not to ask during a job interview, or on a job application, and a few other items.

The following is page 4 of my handout.

What’s Appropriate to Ask Job Candidates?

Although there are only a few explicitly illegal questions that an employer should never ask a job applicant, there are many more questions which lead to the inference that the employer intended to illegally exclude (discriminate against) a member of a protected class. One way to help avoid or minimize liability for discrimination is to ask all applicants all of the same questions.

Additionally, it’s crucial that you focus on questions related to the essential job functions. Or, put another way, are the questions you’re asking intended to solicit information connected to the applicant’s ability and willingness to perform the essential job functions, or are they more indicative of illegal bias? In almost all cases, it’s not an essential job function to be of a certain race, age, sex, sexual orientation, etc. Exceptions are very limited.

Don’t ask questions to determine if the applicant has children or dependents, or plans to start a family. Such questions include asking about the number of children, having a babysitter or even if the applicant has a car (unless, the job requires that the applicant has their own transportation). If the candidate indicates that they’re pregnant, then you can congratulate them, but don’t relate their pregnancy to the job unless they indicate that they require some sort of accommodation.

You can ask questions to determine an applicant’s reliability. Such questions include asking what hours and days the person can work; are there specific days or times they can’t work, or if they have outside responsibilities that will interfere with work.

Relative to an applicant’s national origin, you shouldn’t ask questions to determine where the candidate is from. Such questions include asking where their parents are from or maiden names. You can ask if the applicant is legally eligible to work in the U.S., or if they have ever worked under a different or another name.

With respect to arrest and conviction records, you can’t ask if the applicant has ever been arrested. You can ask if they have ever been convicted of a crime. If they’ve been convicted, then you could also ask what, when and how the case was resolved. Essentially, you should only be concerned with a criminal conviction if such information relates to essential functions; e.g., handling money or being with children. Moreover, the date of conviction may be relevant depending on the magnitude of the crime. For example, 5 years after conviction or completion of the sentence or probation could be a good cut off date. Also, acquire the applicant’s written waiver/permission to conduct the criminal background check.

You can’t ask if a candidate has any physical or mental disabilities. Also, you can’t ask if the applicant has an alcohol or drug problem, or if they take any medications. The above prohibitions are negated if the applicant explicitly and without your solicitation discloses any disability, impairment, drug or medication usage. If this is the case, you can ask if they can work the hours and days you specify, or if the applicant has nonwork related responsibilities which would interfere with their ability to perform the essential job functions. Moreover, you can ask if the applicant can perform the essential job functions with or without an accommodation.

Relative to credit record and financial history, you cannot ask if the applicant owns or rents a home, if they’ve ever had wages garnished or if they’ve ever declared bankruptcy. You can disclose that you’ll be conducting a pre or post job offer credit check in compliance with the Fair Credit Reporting Act and the Consumer Credit Reporting Reform Act.

Regarding military record, you cannot ask about discharge. You can ask about the applicant’s education, training and work experience while in the military.

With respect to languages spoken, if the job requires language fluency, other than English, then you can ask if the applicant has that ability. However, you can’t just ask what the applicant’s native language is. This could lead to an inference of national origin or race discrimination.

In the “old boys’ network” it used to be asked of applicants what clubs, organizations, lodges and societies they belong to. Now, due to their association with weeding out members of protected classes, these questions are unadvisable. You can ask about membership or associations only if they directly relate to the applicant’s ability to perform the essential job functions. E.g., “We expect you to become involved with local chambers of commerce, because this is how we develop new business and alliances. Do you have problem with this?”

Relative to past time off from work, work related injuries or worker’s compensation, you should never ask if the applicant has ever filed for worker’s compensation, unemployment compensation or if they have ever sued or complained against a prior employer. Also, you should never ask if the applicant had any prior work related injuries. Again, you can ask if there are specific days or times that the applicant can’t work, or whether the applicant can perform the essential job functions.

Asking about religion and ideological beliefs, associations or affiliations is usually indicative of illegal bias. They rarely, if ever, relate to the essential job duties and will only serve as an invitation to lawsuits. The exception is if your organization or business is a religious organization.

Don’t ask about a candidate’s gender or sexuality. Don’t ask about titles such as: Mr., Ms., Mrs., or Miss. Don’t ask about sexual orientation such as bisexuality, homosexuality or trasngenderism.

Previous addresses (residential) have traditionally been asked on job applications and interviews. Such information is rarely related to job duties, skills, abilities or knowledge. So, don’t make such an inquiry. If you believe that such information is relevant, then you can get this by doing a credit or background investigation.

Also, asking someone when they graduated college or high school may be indicative of age bias, so don’t ask when they graduated or attended. You could ask what kind of education or degrees they have.

You can ask an applicant’s date of birth to determine employment eligibility. Use a disclaimer or indication that the applicant is being asked only for purpose of determining eligibility.

Some of the information contained in this post was adapted from the following articles: Society of Human Resource Management Whitepaper-“Guidelines on Interview and Employment Application Questions” by Nail & Scharinger, 1998, 1999, 2002; Society of Human Resource Management Whitepaper: “ADA Job Interview Checklist for Supervisors,” by Pritchard, 1992, 1999, 2002; & “333 Interviewing Questions,” by Borgman Associates, 1993.