CITIZEN OF WHAT COUNTRY? RIGHT TO WORK?

Inquiries about a person’s citizenship or country of birth are unlawful and imply discrimination on the basis of national origin. A lawfully immigrated alien may not be discriminated against on the basis of citizenship. The Immigration Reform and Control Act of 1986 requires employers to verify the legal status of, and permission to work for all new hires. Employers should not ask applicants to state their national origin, but should ask if they have legal permission to work in the United States. They should then explain that verification of that permission must be submitted after the decision to hire has been made. To satisfy verification requirements, employers should ask all new hires for documents establishing both identity and work authorization. For more details on these regulations, contact the U.S. Citizenship and Immigration Service (USCIS) at 1-800-375-5283.

CREDIT OR GARNISHMENT RECORD? CHARGE ACCOUNTS? HOMEOWNER?

Answers to these inquiries are almost always irrelevant to job performance. Because census data indicates minorities, on average, are poorer than whites, consideration of these factors may have a disparate impact on minorities. Therefore, requests of this nature may be unlawful unless clearly required by business necessity.

DISABILITIES? HEALTH HISTORY?

Inquiries about a person’s disability, health, or worker’s compensation history are unlawful if they imply or express a limitation based on disability. Under the federal Americans with Disabilities Act, any inquiry at the pre-employment stage which would likely require an applicant to disclose a disability is unlawful. Employers must avoid such inquiries or medical examinations before making a bona fide job offer. However, an employer may inquire about an applicant’s ability to perform certain job functions and, within certain limits, may conduct tests of all applicants to determine if they can perform essential job functions, with or without an accommodation.

EDUCATIONAL BACKGROUND?

While employers may inquire about a person’s education, only clearly job-related education should be considered in making the hiring decision. Educational requirements that are not necessary for performance of the job may be unlawful if they adversely impact protected group members. Rather, find a reliable way to determine if applicants have the skills necessary to function successfully in the job.

FRIENDS OR RELATIVES WORKING FOR US?

This question is not relevant to an applicant’s competence and should be avoided. Since the question implies a preference for friends or relatives, it may be unlawful if the composition of the present work force is such that this preference reduces or eliminates employment opportunity for minorities or women. This question may also reflect a rule that only one partner in a marriage can work for the employer. This tends to have a disproportionate impact on women.

HEIGHT? WEIGHT?

Minimum height and weight requirements are unlawful if they screen out a disproportionate number of women or minorities. Unless the employer can show that a height or weight requirement is essential for job performance, such inquiries should be avoided.

HONESTY TESTING BEING DONE?

An applicant may not be required to take a polygraph test. If the employers request such a test, they must inform applicants in writing and orally that the test is voluntary. Hiring decisions may not be based on polygraph test results, without the employer considering other relevant information obtained independently. Employers may use only one permitted type of mechanical device that visually, permanently, and simultaneously records the person’s cardiovascular and respiratory patterns and changes. Questions must relate to a person’s work performance. Display of polygraph protection posters is required for employers who use such tests.

LANGUAGE PROFICIENCY?

Some level of English skill may be necessary for many jobs, but, it is also clear that fluency or absence of an accent is not relevant for a substantial number of jobs. Employers must be careful about requiring English language proficiency and must ensure the skill level being sought does not exceed the level required for successful job performance.

LOWEST ACCEPTABLE SALARY?

Women generally hold poorer paying jobs than men and are paid less for the same work. As a result of these practices, a woman might be willing to work for less pay than a man might find acceptable. It is unlawful to pay a woman less than a man for performing the same or substantially similar work.

MAIDEN NAME? SPOUSE’S NAME? MR., MISS, MRS., OR MS.? MARITAL STATUS?

None of these inquiries is relevant to job performance and each could be used to discriminate. A woman’s maiden name or spouse’s name may indicate religion or national origin. Having a person check a box for Mr., Mrs., or Miss may be impermissible with regard to gender or marital status. An employer may not discriminate against a person because of their status of being married, single, divorced, separated, or widowed.

MILITARY SERVICE?

It is unlawful to discriminate against someone because of membership in the National Guard, a state defense force, or another state or federal reserve unit. Questions relevant to experience or training received in the military, or to determine eligibility for any veteran’s preference required by law are acceptable.

USE OR NONUSE OF LAWFUL PRODUCTS? DO YOU SMOKE? DRINK ALCOHOL?

An employer may not discriminate against a person for using or not using lawful products off the employer’s premises during nonworking hours. The law contains some exceptions, but employers generally should avoid inquiries in this area.

A FINAL NOTE

It is reasonable to assume that all questions on an application form or in an interview are for a specific purpose, and that decisions are made on the basis of the answers given. In deciding if a question is unlawful, the employer should determine why the information sought is necessary. For example, why is it important to know a person’s age, or their ability to speak Spanish? If the answer does not provide job-related information to determine a person’s qualifications, it is a strong indication the question should not be asked. Questions that do not produce information that helps the employer choose the most qualified applicant tend to raise questions as to the employer’s motive for asking. This is one of a series of fact sheets highlighting programs of the Wisconsin Department of Workforce Development. It is intended to provide only a general description, not a legal interpretation. The Equal Rights Division has additional informational materials explaining various aspects of the fair employment law.

PAMPHLET SERIES

#1. Fair Hiring & Avoiding Loaded Interview Questions
#2. Harassment in the Workplace
#3 Pregnancy Employment & the Law
#4 Persons with Disabilities on the Job
#5 Fair Employment Law & Complaint Process
#6 Age Discrimination in the Workplace
#7 Settlement

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eBook	Fair Hiring & Avoiding Discriminatory Interview Questions


Table of Contents RIGHT TO WORK Useful Links Employment Job Search	RIGHT TO WORK CITIZEN OF WHAT COUNTRY? RIGHT TO WORK? Inquiries about a person’s citizenship or country of birth are unlawful and imply discrimination on the basis of national origin. A lawfully immigrated alien may not be discriminated against on the basis of citizenship. The Immigration Reform and Control Act of 1986 requires employers to verify the legal status of, and permission to work for all new hires. Employers should not ask applicants to state their national origin, but should ask if they have legal permission to work in the United States. They should then explain that verification of that permission must be submitted after the decision to hire has been made. To satisfy verification requirements, employers should ask all new hires for documents establishing both identity and work authorization. For more details on these regulations, contact the U.S. Citizenship and Immigration Service (USCIS) at 1-800-375-5283. CREDIT OR GARNISHMENT RECORD? CHARGE ACCOUNTS? HOMEOWNER? Answers to these inquiries are almost always irrelevant to job performance. Because census data indicates minorities, on average, are poorer than whites, consideration of these factors may have a disparate impact on minorities. Therefore, requests of this nature may be unlawful unless clearly required by business necessity. DISABILITIES? HEALTH HISTORY? Inquiries about a person’s disability, health, or worker’s compensation history are unlawful if they imply or express a limitation based on disability. Under the federal Americans with Disabilities Act, any inquiry at the pre-employment stage which would likely require an applicant to disclose a disability is unlawful. Employers must avoid such inquiries or medical examinations before making a bona fide job offer. However, an employer may inquire about an applicant’s ability to perform certain job functions and, within certain limits, may conduct tests of all applicants to determine if they can perform essential job functions, with or without an accommodation. EDUCATIONAL BACKGROUND? While employers may inquire about a person’s education, only clearly job-related education should be considered in making the hiring decision. Educational requirements that are not necessary for performance of the job may be unlawful if they adversely impact protected group members. Rather, find a reliable way to determine if applicants have the skills necessary to function successfully in the job. FRIENDS OR RELATIVES WORKING FOR US? This question is not relevant to an applicant’s competence and should be avoided. Since the question implies a preference for friends or relatives, it may be unlawful if the composition of the present work force is such that this preference reduces or eliminates employment opportunity for minorities or women. This question may also reflect a rule that only one partner in a marriage can work for the employer. This tends to have a disproportionate impact on women. HEIGHT? WEIGHT? Minimum height and weight requirements are unlawful if they screen out a disproportionate number of women or minorities. Unless the employer can show that a height or weight requirement is essential for job performance, such inquiries should be avoided. HONESTY TESTING BEING DONE? An applicant may not be required to take a polygraph test. If the employers request such a test, they must inform applicants in writing and orally that the test is voluntary. Hiring decisions may not be based on polygraph test results, without the employer considering other relevant information obtained independently. Employers may use only one permitted type of mechanical device that visually, permanently, and simultaneously records the person’s cardiovascular and respiratory patterns and changes. Questions must relate to a person’s work performance. Display of polygraph protection posters is required for employers who use such tests. LANGUAGE PROFICIENCY? Some level of English skill may be necessary for many jobs, but, it is also clear that fluency or absence of an accent is not relevant for a substantial number of jobs. Employers must be careful about requiring English language proficiency and must ensure the skill level being sought does not exceed the level required for successful job performance. LOWEST ACCEPTABLE SALARY? Women generally hold poorer paying jobs than men and are paid less for the same work. As a result of these practices, a woman might be willing to work for less pay than a man might find acceptable. It is unlawful to pay a woman less than a man for performing the same or substantially similar work. MAIDEN NAME? SPOUSE’S NAME? MR., MISS, MRS., OR MS.? MARITAL STATUS? None of these inquiries is relevant to job performance and each could be used to discriminate. A woman’s maiden name or spouse’s name may indicate religion or national origin. Having a person check a box for Mr., Mrs., or Miss may be impermissible with regard to gender or marital status. An employer may not discriminate against a person because of their status of being married, single, divorced, separated, or widowed. MILITARY SERVICE? It is unlawful to discriminate against someone because of membership in the National Guard, a state defense force, or another state or federal reserve unit. Questions relevant to experience or training received in the military, or to determine eligibility for any veteran’s preference required by law are acceptable. USE OR NONUSE OF LAWFUL PRODUCTS? DO YOU SMOKE? DRINK ALCOHOL? An employer may not discriminate against a person for using or not using lawful products off the employer’s premises during nonworking hours. The law contains some exceptions, but employers generally should avoid inquiries in this area. A FINAL NOTE It is reasonable to assume that all questions on an application form or in an interview are for a specific purpose, and that decisions are made on the basis of the answers given. In deciding if a question is unlawful, the employer should determine why the information sought is necessary. For example, why is it important to know a person’s age, or their ability to speak Spanish? If the answer does not provide job-related information to determine a person’s qualifications, it is a strong indication the question should not be asked. Questions that do not produce information that helps the employer choose the most qualified applicant tend to raise questions as to the employer’s motive for asking. This is one of a series of fact sheets highlighting programs of the Wisconsin Department of Workforce Development. It is intended to provide only a general description, not a legal interpretation. The Equal Rights Division has additional informational materials explaining various aspects of the fair employment law. PAMPHLET SERIES #1. Fair Hiring & Avoiding Loaded Interview Questions #2. Harassment in the Workplace #3 Pregnancy Employment & the Law #4 Persons with Disabilities on the Job #5 Fair Employment Law & Complaint Process #6 Age Discrimination in the Workplace #7 Settlement back to top Next page
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