No question is in and of itself illegal. However, if you ask a question that seeks
information about a person's age, gender, race, national origin, religion, marital status
(and in some cities, sexual orientation), you might have a hard time proving that you
didn’t use this information in your hiring decision. Keep your questions strictly
job-related and only ask for what you need to know. If the applicant reveals information
about her or his status in a protected group, be sure to state immediately that you
don’t consider such information in your hiring decision.
1. Are you related to anyone presently working for this company?
A company can have a preference for hiring relatives of employees, and this is not
a problem as long as people of races other than that of the family members also get hired.
Some companies have a policy of not hiring family members for positions in which they will
directly supervise or be supervised by their relatives. Such a policy is prudent because
it eliminates the possibility of perceived favoritism. Just make it clear that this policy
is the reason why you are asking this question.
2. Have you ever been convicted of a felony ?
You can ask this IF you include of a felony a disclaimer to the effect that this
information will not automatically bar the applicant from consideration, and IF you
restrict the inquiry to the past seven years. As social policy, the intent of the law is
to allow ex-prisoners who have done their time to start over, hold down a job and become
respectable citizens. You are supposed to consider whether the offense is related to the
job for which the person is applying. For example, would a conviction for forgery
necessarily preclude hiring a person as a product stocker? If you ask about convictions,
do it on the application so that the applicant answers in writing and then signs a
statement at the bottom of the form certifying that all information s/he has provided is
true.
3. When did you graduate from high school?
This is going to reveal the applicant’s age, which is not job-relate
information. If a high school diploma or GED is a job requirement, ask if the applicant
has it. If you need an employee old enough to handle alcohol, you can ask, "Are you
21 years of age or older?"
4. Are you a U.S. citizen?
Some industries, such as defense, are allowed to discriminate in favor of US
citizens, but the natural foods industry isn’t one of them. As long as a person has a
valid work permit, you must consider her or him on the same footing as an American
citizen. Instead, ask on your application form, "If hired could you show evidence of
your right to work in the US?"
5. Are you pregnant?
Don’t ask this. If it’s a job requirement that the person be able to come
to work every day for the next 6 months, ask if the applicant can meet that requirement.
Of course such a requirement must apply to all employees in that position, not women only.
6. Who will take care of your children while you are working?
This is none of your business, and could be construed as discrimination against women
since they are usually assumed to be the caretakers of the children. It’s enough to
explain the schedule of the job and ask the applicant if he or she can meet that schedule.
7. Would you be able to work overtime on Saturdays and Sundays?
There’s a hidden trap in this question. Applicants may belong to a religion that
observes Saturday or Sunday as the Sabbath. If you are hiring for a Monday through Friday
position and you want someone with the flexibility to come in and work on weekends too,
you are expected to provide reasonable accommodation for employees who observe a Sabbath
by not requiring them to work both weekend days. However, if the job is regularly
scheduled to include a day that the applicant will not work, you don’t have to change
your job requirements.
8. Do you have any disabilities that may affect your performance in the position for
which you are applying?
Under the Americans with Disabilities Act, this is not OK. The intent of the law is
to prohibit discriminatory assumptions about what a disabled person is capable of doing.
This question focuses on what the applicant CANNOT do.
9. Is there any health-related reason you may not be able to perform the job for
which you are applying?
Same problem as above.
10. Are you able to perform the tasks involved in the job you are applying for, with
or without reasonable accommodation?
This is the proper way to approach the issue of disability. It may seem like a
difference of mere semantics at first, but this question allows the applicant to explain
what she CAN do. This question presupposes that the applicant has seen the job description
or heard a detailed description in the interview, or has observed other employees
performing the job.
11. If you are able to perform the tasks involved in this position with
accommodation, how would you perform those tasks and what accommodation do you require?
Having asked the question above, it is now valid for the employer to find out what
kind of accommodation an applicant needs. To the pleasant surprise of many companies, it
turns out that the vast majority of accommodations cost little (a few hundred dollars) or
nothing.
12. Do you have any problems working for a woman supervisor?
The main problem with this question is not a legal one. Rather, it’s a leading
question, just begging for the "right answer." You’re not going to learn
anything from asking it.
