Federal and state law prohibits employers from advertising or making any inquiry expressing a preference based on protected class status. Therefore, all pre-employment questions should be designed to obtain information relating only to qualifications for successful job performance. Q. What kind of questions should be avoided?
A. The following are the types of questions that employers should avoid asking of job aspirants:
Q. What questions can be asked concerning an applicant´s disabilities?
- Questions asking for direct information about an individual´s race, sex, age, marital status, etc.
- Questions asking for information typically evaluated differently for men and women, such as questions regarding child care arrangements.
- Questions asking for information that could be used to screen out members of protected classes, such as questions about height or weight.
A. Employers can ask questions relating to an individual´s ability to perform essential tasks, but the Americans with Disabilities Act (ADA) prohibits questions relating to physical impairments or disabilities.
Below are some examples of inappropriate questions that could violate an applicant´s protected class status: Marital status:
Are you married? Divorced? Separated?
Since it is illegal to discriminate on the basis of marital status, such inquiries are inappropriate.
Age: Birthdate? How old are you?
If it is necessary to know if an applicant is over a certain age for legal reasons, this question could better be stated as "Are you 21 or over?" or, "Are you 18 or older?"
Race, gender: What is your race? Gender? Furnish a photograph. Hair and eye color.
If it is necessary to ask for this information for affirmative action purposes, such inquiries should be accompanied by a statement indicating that the information is needed for affirmative action reporting purposes and will not be used to discriminate. A photograph should not be required unless physical appearance is a bona fide occupational requirement for the job.
Sex: Are you pregnant? Do you plan to start a family?
Oregon law clearly states that discrimination on the basis of pregnancy is sex discrimination. According to the law, pregnant employees must receive the same benefits as other employees in similar job classifications. ORS 659.029
Injured worker: Have you ever applied for workers´ compensation?
This question is unlawful under the ADA. In addition, Oregon employers with six or more employees cannot refuse to hire an applicant because of that person´s prior workers´ compensation claims.
Religion: What is your religious affiliation? Are you able to work Saturdays and Sundays?
Since it is unlawful to refuse to hire an applicant because of his/her religion, such questions could be perceived as discriminatory.
National origin: Were you born in the U.S.? Are you a citizen of the U.S.?
It is better to state that if hired, it will be necessary to present identification in accordance with IRCA requirements.
Family relationship: Do you have any relatives currently employed in this company?
An employer cannot refuse to hire because the applicant has a relative working for the same company, unless one family member would work in a supervisory capacity over the other, or unless the employer could prove the existence of some other bona fide occupational qualification.
Nothing on this website is intended as legal advice. Any responses to specific questions are based on the facts as we understand them, and not intended to apply to any other situations. This communication is not an agency order. If you need legal advice, please consult an attorney. We attempt to update the information on this website as soon as practicable following changes or developments in the laws and rules affecting Oregon employers, but we make no warranties or representations, express or implied, about whether the information provided is current. We urge you to check the applicable statutes and administrative rules yourself and to consult with legal counsel prior to taking action that may invoke employee rights or employer responsibilities or omitting to act when required by law to act.
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