Employment Discrimination Laws: What Employers Can Legally Ask Employees

Federal and state employment discrimination laws prohibit discrimination in all aspects of the employment relationship. Legally protected classes of persons for employment discrimination rights are persons who are discriminated against based on their: 

• race
• religion
• sex or gender 
• national origin
• pregnancy
• sexual orientation
• disability
• age (age 40 or older)

Questions Employers Cannot Ask a Prospective or Current Employee

Although employers are not permitted to consider a person’s membership in a protected class, too often such considerations permeate the employer’s actions, even subconsciously. Discrimination may often be inferred from questions employers ask during the hiring process or even once an employee is hired. In general, any question bearing on the protected classes can be considered improper. 

Examples of Questions that Are Considered Inappropriate and Possibly Unlawful

Asking questions about a candidate’s: 

• family planning intentions (sex)
• year of graduating high school (age)
• health/limitations, particularly when such questions are unrelated to the specific tasks and duties of the position (disability)
• family history (national origin)
• religion or observance of religious holidays 
• marital status
• family situation 

Examples of Proxy Questions That Can Be Considered Inappropriate

Questions/asking about:

• non-professional organizations can be a proxy question about race, age, or gender
• weekend work can be a proxy question for religious observance
• evening work or childcare arrangements can impact females who have childcare responsibilities
• criminal arrests (as opposed to convictions) also should not be asked

Many states have enacted laws that prohibit asking questions about salary history

Questions That Can Legally Be Asked

Employers can ask a candidate if they can perform all aspects of the job that the employer describes to them. For example, if a car is required to perform the job, an employer can ask the candidate if they own or have access to a car. 

In considering questions for candidates or employees, the fundamental issue is whether the employer can demonstrate a job-related necessity for asking the question. Even when it is apparent that an individual may not be able to fulfill the duties of the position he or she is applying for, or currently holding, due to a disability, the employer may still be required to work with the employee to implement accommodations that would allow the individual to perform their work. Not doing so may be a violation of law. The key issue is whether such an accommodation exists and what the impact on the company would be if it was implemented.

Questions About Criminal Convictions

Many states have implemented protections against inquiries about a prospective employee’s criminal history. However, this is not an all out ban. In general, questions about criminal convictions depend on the type of job and company. If there is a reasonable connection between the prior conviction and the position, an employer may be able to inquire about a prospective employee’s specific criminal background. For example, an employer may ask a person handling a cash register or making bank deposits for the business if there have been any criminal convictions for stealing, forgery, identity theft or misappropriation of funds. These cases bear directly on the employment position. 

Many states, however, have limits on asking about criminal convictions. Several prohibit discrimination based on a criminal conviction unless it is substantially related to the job. Other states require the conviction to have occurred within a given time period and have a rational relationship to the job. 

Have You Experienced Employment Discrimination? We Can Help

Have you been subject to employment discrimination in an interview or as an employee? Call us to speak to one of our dedicated employment attorneys today and know your rights as an employee. 

Our employment discrimination attorneys are experts on questions that can and cannot be asked of candidates and existing employees. We know what questions are permissible under both federal and state laws.

Our attorneys are employment discrimination specialists and we are determined, experienced advocates on behalf of employees and applicants who have faced discrimination and retaliation in the workplace. To consult with one of our employment discrimination attorneys, please call our New York City office at (212) 736-4500 or contact us today. There is no fee for a private consultation.

Nesenoff & Miltenberg, LLP. is a civil litigation firm specializing in, among other areas, employment discrimination and retaliation litigation. The purpose of this blog is to inform readers of their rights in the workplace. This blog should not be construed as offering legal advice. If you feel you have been a victim of discrimination in the workplace, please contact us.