EXPLOYMENT LAW #2
Federal and state anti-discrimination laws provide that an employer may not use an applicant’s race, color, sex, age, national origin, religion or disability as a basis for a hiring decision. If not worded properly, questions on municipal job application forms or during the interview process may violate these statutes and subject the municipal employer to liability for failure to hire. The following are some examples:1. NAME:
Unacceptable: Request for maiden name.
Acceptable: Have you ever used another name? If so, if there is any information relevant to change of name, use of an assumed name or nickname which is necessary to enable a check on your work or educational record, please explain.2. AGE:
Unacceptable: How old are you? Age? Date of birth? Dates of attendance or completion of elementary or high school. Dates of birth or ages of children. Submission of documentation such as birth certificate or driver’s license which shows age.
Acceptable: “Are you over 18 years of age?” “If hired can you show proof that you are at least 18 years of age?” Statement that employment is subject to verification that applicant meets legal age requirements. “If under 18, can you, after employment, submit a work permit?”3. BIRTHPLACE, CITIZENSHIP, NATIONAL ORIGIN:
Unacceptable: Place of birth of applicant, applicant’s spouse or other relatives. “Are you a U.S. Citizen?” “What principal language do you speak?”
Acceptable: Statement that after employment, proof may be required of your legal right to work in the United States. “Can you, after employment, submit verification of your legal right to work in the United States?” “Please identify any languages other than English which you read, speak or write which are relevant to your qualifications for this employment.”4. SEX, PREGNANCY, FAMILY:
Unacceptable: Name, number, or ages of spouse, children or dependents. Questions regarding pregnancy, childbearing, child care, or name of relative to contact in event of emergency.
Acceptable: Name and address of parent or guardian if applicant is a minor. Statement of policy regarding work assignment of employees who are related. “Do you have any relatives already employed? If so, give names and positions held.” Name of person to contact in event of emergency.5. RACE, COLOR:
Unacceptable: Any questions as to applicant’s race, color, color of skin, eyes or hair, any requirement or optional request that applicant provide a photograph at any time before employment.
Acceptable: Statement that photograph may be required after employment.6. PHYSICAL OR MENTAL CONDITION:
Unacceptable: Questions regarding general medical condition, state of health, prior illnesses, prior receipt of disability or compensation benefits, questions regarding disability or handicap.
Acceptable: Statement that employment offer may be made contingent on applicant passing a job-related physical examination.7. RELIGION:
Unacceptable: Questions regarding religion, religious days observed. “Does your religion prevent you from working weekends or holidays?”
Acceptable: Statement by employer or regular days, hours or shifts to be worked.8. REFERENCES:
Unacceptable: Any questions asked of an applicant’s former employer or reference which elicit information specifying applicant’s race, color, religion, national origin, disability, age or sex.
Acceptable: Asking applicant to list professional and/or character references; or asking applicant to list all job-related organizations, clubs, professional societies or other associations to which applicant belongs, omitting those which indicate race, religion, color, national origin, ancestry, sex or age.
Guidelines on questioning of applicants are available from the Equal Employment Opportunity Commission and the New York State Division of Human Rights, and there are specific exceptions made in limited cases. Municipal personnel involved in hiring should be conversant with these guidelines, and municipal job applications should be reviewed periodically for compliance. Care should also be taken in the preparation of related documents, such as job descriptions, to ensure that they do not discriminate against individuals with physical disability, or based upon age, sex race or another protected factor.