One of the purposes of the fair employment law is to encourage employers to evaluate job applicants on the basis of their qualifications, rather than on their membership in a particular class to which they may belong. Under section 111.322(2) of the Wisconsin Statutes it is unlawful: To print or circulate any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which implies or expresses any limitation or discrimination based upon a person’s race, color, creed, ancestry, national origin, age, sex, disability, arrest or conviction record, marital status, sexual orientation, military service, or use or nonuse of lawful products away from work. For example, an employer might ask an applicant, "What nationality are you?" This question implies that an applicant’s national origin will be a factor in the employment decision. Even if the employer does not intend to discriminate, asking the question may be unlawful. This pamphlet deals primarily with avoiding discriminatory questions, but employers should also review their recruitment, hiring, and promotion processes to ensure they are fair. Before Hiring You May Want To Consider The Following:
NEED HELP:
Job Service has trained job counselors who can assist in matching employers and qualified applicants. To locate the Job Center in your area, call 1-888-258-9966, or go to www.wisconsinjobcenter.org.
LOADED QUESTIONS TO AVOID
The key to understanding unlawful inquiries is to ask only questions that will provide information about the person’s ability to do the job, with or without a reasonable accommodation. Also note that if it is unlawful to ask the applicant the question directly, it is also prohibited to ask the same question as part of pre-offer reference checks.
AGE? DATE OF BIRTH?
Avoid age-based inquiries. Both state and federal laws prohibit discrimination against persons age 40 and older. An age inquiry may be made to ensure a person is "old enough" to work for the job, or if the job is among the few where age discrimination is permitted such as driving a school bus or other physically dangerous or hazardous work.
ARRESTED? CONVICTED?
Wisconsin law prohibits inquiries about past arrest records but permits consideration of a current arrest. If an applicant is under arrest for an offense that is substantially related to the job an employer may suspend judgment until the case is resolved, advise the applicant to reapply when the charge is resolved, or refuse to employ the applicant. A current employee who is arrested may be suspended if the charge is substantially related to the job. An employer may not refuse to employ or discharge a person with a conviction record unless the circumstances of the conviction substantially relate to the circumstances of the job. If an inquiry about convictions is made, the employer should add a clarifier, "A conviction will not necessarily disqualify you from employment. It will be considered only as it may relate to the job you are seeking." Anyone who evaluates conviction record information should be knowledgeable about how such data may be used.
AVAILABLE FOR WORK ON SATURDAY AND SUNDAY?
This question may discourage an applicant whose religion prohibits Saturday or Sunday work. If a question about weekend work is asked, the employer should indicate that a reasonable effort is made to accommodate religious beliefs or practices. An employer is not required to make an accommodation if doing so would create an undue hardship for the business.
CHILDREN? NUMBER & AGES? CHILDCARE ARRANGEMENTS? PREGNANT?
The purpose of these child-related inquiries is to explore what some employers believe is a common source of absenteeism and tardiness. Typically, these questions are asked only of women, making the inquiry clearly unlawful. However, even if such inquiries are made of both men and women, the questions may still be suspect. Such information has been used to discriminate against women because of society’s presumption that they are the primary caregivers. If the employer’s concern is regular work attendance, a better question would be, "Is there anything that would interfere with regular attendance at work?"