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Pre-Employment Inquiries
Federal and state laws protect job applicants from discrimination based on certain activities, associations, statuses, and characteristics called protected classes.  To avoid potential legal liability, employers should avoid asking questions of applicants that are intended to or could accidentally require disclosure of protected information or reveal membership in a protected class. In addition to the broader implications of protected classes, employers must also be aware of specific information they are prohibited against seeking from applicants prior to certain points in the hiring process. Instead, employers should focus pre-employment questions to solicit information related only to the qualifications for successful job performance. 
  
Q. Is there any information that employers are prohibited from asking on an application?

A. Employers may not require an applicant to disclose the following information on an application for employment:
  • Salary history
  • Criminal convictions 
​​Employers are also prohibited from discriminating against applicants who are not currently employed.

Q. When may an employer ask about an applicant’s salary history?

A. An employer may confirm an applicant’s salary history once a conditional offer of employment, including compensation, has been made. ORS 659A.357.

Q. When may an employer ask about an applicant’s criminal history?

A. Under Oregon’s “ban the box” law, an applicant may not be excluded from an initial interview solely because of a past criminal conviction, which means that an employer may not require an applicant to disclose a criminal conviction on a job application or prior to an initial interview. If no interview is conducted, an employer may not require an applicant to disclose a criminal conviction prior to making a conditional job offer. 

Under the more stringent Portland “ban the box” ordinance, an employer may consider an applicant’s criminal history in the hiring process only after making a conditional offer of employment. This means that an employer violates the ordinance if it accesses an applicant’s criminal history prior to making the conditional job offer. If a criminal history is used to make the employment decision, an employer must make a good faith determination that a specific offense or conduct is job-related and consistent with business necessity.

For additional information see our factsheet on “ban the box” laws.
 
Q. If a job has specific physical requirements, may an employer ask about an applicant’s ability to perform the job without violating the law?

A. Employers may ask questions relating to an individual´s ability, with or without accommodations, to perform the essential functions of the job for which they are applying. Employers are prohibited by law from asking about an applicant’s disability, physical or mental, or discriminating against an individual based on their actual or perceived disability.

Q. May an employer ask an applicant to undergo a medical examination prior to employment?

A. An employer may not make any medical inquiries or require an applicant to take part in a medical examination until after a conditional offer of employment has been made and then only if the exam is required of all new employees in the same category. 

Q. What are some other types of questions that employers should avoid asking applicants?

A. Employers should avoid asking questions on an application or during an interview that may (or are designed to) require an applicant to identify membership in a protected class or disclose protected information. While this is not a complete list, below are some examples of typical questions asked of applicants or employees that can actually lead to violations of the law. 

Employers should avoid:
  • ​Questions asking for personal information about an individual´s race, sex, age, and marital status
Were you born in the U.S.? Are you a US citizen? 
It is better to state that if hired, a new employee must present documentation sufficient to establish work authorization in the United States. 

What is your birthdate? How old are you? 
If an applicant’s age is necessary for legal reasons, an employer should ask whether the applicant is over the required age, e.g. Are you over 18? Are you over 21?
  
What is your race? Gender? Furnish a photograph. 
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 for any other purposes. A photograph should not be required unless physical appearance is a bona fide occupational qualification for the job.

Are you married? Divorced? Separated? 
It is unlawful to discriminate based on an applicant’s marital status.
  • Questions asking for information typically evaluated differently for men and women, such as questions regarding child care arrangements, plans for future children. 
How many children do you have? 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.
  • Questions asking for information that could be used to screen out members of protected classes.
Have you ever applied for workers´ compensation or been injured on the job? 
This question is unlawful under the federal Americans with Disabilities Act. In addition, Oregon employers with six or more employees cannot refuse to hire an applicant because of that person´s prior workers´ compensation claims. 
  
What is your religious affiliation? Are you able to work Saturdays and Sundays? 
It is unlawful to discriminate against an applicant due to their religion, or lack thereof. Employers are also required to reasonably accommodate an applicant’s sincerely held religious beliefs, which may include not working on certain days of the week. If working a particular schedule is an essential function of the job, simply state that fact and ask whether the applicant is able to work the schedule. 
  
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 demonstrate the existence of some other bona fide occupational qualification. 

Do you smoke?
While employers have the right to enforce fragrance free workplace policies and Oregon’s Indoor Clean Air Act requires almost all employers to maintain smoke-free workplaces and display “no smoking” signs, Oregon law prohibits discrimination based on lawful off-duty tobacco use. 

June 2019

DISCLAIMER 
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.
 
TECHNICAL ASSISTANCE FOR EMPLOYERS
800 NE OREGON STREET, STE 1045
PORTLAND, OR  97232
971-673-0824
 
 
THIS INFORMATION IS AVAILABLE IN AN ALTERNATE FORMAT​