Item

Prohibited Information

Lawful Information

AGE

Age, birth certificate. Federal law prohibits discrimination on the basis of age over 40. DC imposes an additional layer of protection starting at age 18. Inquiries as to date of high school or college graduation.

Whether candidate meets minimum or maximum age requirement that is a bona fide occupational qualification (BFOQ), such as for police officer or firefighter.

ALCOHOL OR DRUG USE

Alcoholism is a covered disability under the ADA. Current users of illegal drugs are not protected under the ADA.

·Employers may not ask applicants about their lawful drug use. However, if an applicant tests positive for a controlled substance, then the employer may ask about lawful drug use.

·Employers may not ask at the pre-offer stage, the following types of questions: "How often did you use illegal drugs in the past?" "Have you ever been addicted to drugs?" or "Have you ever been treated for drug addiction or drug abuse?" These types of questions are considered questions that would lead to discovery of a disability, rather than questions that are related to ability to perform the job in question.

·Employers may not ask applicants how much they drink or whether they have participated in an alcohol rehabilitation program.

Employers may ask applicants about their current illegal use of drugs.

When the question is job related, employers may ask an applicant whether or not they have been convicted for drunk driving, or whether they drink alcohol, as well as questions about the use of illegal drugs such as, "Have you used illegal drugs in the past six months?"

ARREST RECORD

Any inquiry relating to arrest.

None.

CITIZENSHIP

It is an unfair employment practice to discriminate on the basis of citizenship. The law does not protect unauthorized aliens. It protects citizens and intending citizens, which includes aliens who are lawful permanent residents, as well as temporary residents under the amnesty program who complete a declaration of intention to become a citizen. It is not an unfair employment practice for an employer to prefer to hire a citizen or national of the U.S. over another individual who is an alien if the two individuals are equally qualified for the job (8 USC 1324B).

Whether candidate is legally eligible to work in the U.S.

CONVICTION RECORD

Inquiries relating to convictions that are irrelevant to the job being applied for. EEOC position is that conviction of crime cannot be automatic bar to employment due to adverse impact on minorities. Thus, non-hire must be justified by business necessity. Must be balanced against possibility of negligent hire liability.

Inquiries about convictions that reasonably relate to performing the job in question. Consider both nature and number of convictions, facts surrounding each offense, the job-relatedness of each conviction and the length of time since conviction, plus applicant's employment history since conviction.

CREDIT RATING

Inquiries relating to credit history or credit rating that do not relate to the job in question. Good credit requirements have been challenged as discriminatory because they may have an adverse impact on minorities.

Inquiries about credit history that relate to the job in question.

DISABILITIES

·Employers may not ask applicants whether they will need reasonable accommodation to perform the functions of the job, unless the employer reasonably believes the applicant will need reasonable accommodation because of an obvious disability, or because of a hidden disability that the applicant has voluntarily disclosed to the employer.

·Employers may not ask applicants if they can perform major life activities.

·Employers may not ask applicants about their workers’ compensation histories.

·After giving a job offer to an applicant, the employer may ask disability-related questions and perform medical examinations. Disability-related questions and medical examinations at the post-offer stage do not have to be related to the job.

^{Source: 34 CFR 104.14; EEOC Enforcement Guidance on the ADA, issued October 10, 1995 (http://www.eeoc.gov/docs/preempt.txt).}

·Employers may ask about an applicant's ability to perform specific job functions. Use the already established "essential functions" as a guideline. The employer should state that the performance may be with or without reasonable accommodation.

·Employers may ask about an applicant's non-medical qualifications and skill, such as work history, licensing, education, etc..

·Employers may ask an applicant to describe or demonstrate how they would perform job tasks. If this question is asked, it should be asked of all applicants to avoid a claim that any particular applicant was treated differently than others and thus unfairly. The employer must either provide reasonable accommodation if necessary, or allow the applicant to explain how the accommodation would allow them to perform the job.

·Employers may ask applicants whether they will need reasonable accommodation for the hiring process.

·Employers may ask for documentation of a disability if the applicant requests reasonable accommodation for the hiring process.

·Employers may ask whether an applicant can meet the employer's attendance requirements.

·Employers may ask questions about impairments that are not likely to elicit information about a protected disability, e.g.,"how did your break your leg?" 

EDUCATION

Disqualification of a candidate who does not have a particular degree unless employer has proven that the specific degree is the only way to measure a candidate's ability to perform the job in question.

Inquiries regarding degrees or equivalent experience. Information regarding courses relevant to a particular job.

HEIGHT OR WEIGHT REQUIREMENTS

Height or weight requirements not related to job.

Height or weight requirements necessary for the job.

MARITAL AND FAMILY STATUS

DC law prohibits discrimination based on marital status or family responsibilities. Do not ask about childcare problems, number of children, pregnancy, support orders, etc.

Questions about whether candidate can meet work schedule. Ask of both sexes.

MEMBERSHIP

Inquiries about membership in an organization which reflects religion, national origin, race, sex or age of the candidates. Not hiring someone because they belong to the National Organization for Women might be viewed as sex discrimination.

Inquiries which do not elicit discriminatory information.

MILITARY SERVICE

Under federal law, federal contractors may only invite disabled or Vietnam era vets to self-identify if it is in connection with an affirmative action effort. (This may be changed in the near future to allow up front self-identification.) Preferring applicants with honorable discharge rather than dishonorable discharge may be race discrimination under the adverse impact theory. USERRA protects against discrimination on the basis of military service. However, a less than honorable discharge can be the basis for denial of reemployment under USERRA. Cannot ask about military convictions, unless job related.

Type of experience or education in military as it relates to job. OFCCP guidance forthcoming on whether an employer may ask about prior military service.

NAME

Inquiries to determine national origin, ancestry, or prior marital status.

Whether candidate has ever worked under a different name.

NATIONAL ORIGIN

Lineage, ancestry, descent, mother tongue, birthplace, citizenship. National origin of spouse or parents. Refusal to hire because of a foreign accent or lack of facility with English could be construed as national origin discrimination. Individuals must be able to communicate well enough to perform the job.

Whether candidate is legally eligible to work in the U.S.

PERSONAL APPEARANCE

DC law prohibits discrimination on the basis of personal appearance. Avoid asking questions about the person's appearance or making unnecessary comments on personal appearance.

OK to state guidelines for on the job dress code that serves a reasonable business purpose, and to advise of CUA rules regarding standards of appearance or dress to prevent a danger to the health, welfare, or safety or employees or others.

POLITICAL AFFILIATION

Questions regarding the applicant's past or present political affiliation or lack of political affiliation (DC law).

None.

RACE OR COLOR

Complexion or color of skin.

None.

RELIGION

Religious preference, affiliations.

Whether applicant can meet work schedule with reasonable accommodation if necessary.

SEX

Sex of applicant, where sex is not a bona fide occupational qualification (BFOQ).

Sex of applicant where BFOQ, such as actor or actress.

UNION AFFILIATION

The Labor Management Relations Act makes it illegal for employers to discriminate on the basis of union membership.