Legal vs. Illegal
A Guide to What’s Acceptable When Questioning Prospecting Employees
| Acceptable | Subject | Unacceptable |
| “Have you ever used another name?” /or/ “Is any additional information relative to change of name, use of an assumed name, or nickname necessary to enable a check on your work and education record? If yes, please explain. | Name | Maiden name |
| Place of residence | Residence | “Do you own or rent your home?” |
| Statement that hire is subject to verification that applicant meets legal age requirements.
“If hired, can you show proof of age?” “Are you over eighteen years of age?” “If under eighteen, can you, after employment, submit a work permit?” |
Age | Age.
Birth date Dates of attendance or completion of elementary or high-school Questions which tend to identify applicants over age 40. |
| “Can you, after employment, submit verification of your legal right to work in the United States?” /or/ Statement that such proof may be required after a decision is made to hire the candidate. | Birthplace, Citizenship | Birthplace of applicant, applicant’s parents, spouse, or other relatives.
“Are you a U.S. citizen?” /or/ Citizenship of applicant, applicant’s parents, spouse, or other relatives. Requirements that applicant produce naturalization, first papers, or alien card prior to a decision to hire. |
| Languages applicant reads, speaks, or writes, if use of a language other than English is relevant to the job for which the applicant is applying | National Origin | Questions as to nationality, lineage, ancestry, national origin, descent, or parentage of applicant, applicant’s parents, or spouse.
“What is your mother tongue?” /or/ Language commonly used by applicant. How applicant acquired ability to read, write, or speak a foreign language. |
| Name and address of parent or guardian if applicant is a minor.
Statement of company policy regarding work assignments of employees who are related. Statement of work hours and shifts, asking the employee if they can meet those obligations. |
Sex, Marital Status, Family | Questions which indicate applicant’s sex.
Questions which indicate applicant’s marital status. Number and/or ages of children or dependents. Provisions for child care. Questions regarding pregnancy, child bearing, or birth control. Name and address of relative, spouse, or children of adult applicant “With whom do you reside?” /or/ “Do you live with your parents?” |
| N/A | Race, Color | Questions as to applicant’s race or color
Questions regarding applicant’s complexion or color of skin, eyes, hair. |
| N/A | Credit Report | Any report which would indicate information which is otherwise illegal to ask, e.g. marital status, age, residency, etc. |
| Statement that photograph may be required after employment. | Physical Description, Photograph | Questions as to applicant’s height and weight.
Require applicant to affix a photograph to application. Require applicant, at his or her option, to submit a photograph Require a photograph after interview but before employment. Videotaping interviews. |
| Statement by employer that offer may be made contingent on applicant passing a job-related physical examination.
“Can you perform (specific task)?” Listing the “essential functions” of a job, then asking if the applicant can meet these “essential functions”, with or without accommodations. |
Physical or Mental Disability | Questions regarding applicant’s general medical condition, state of health, or illnesses.
Questions regarding receipt of Worker’s Compensation. “Do you have any physical or mental disabilities or handicaps?” |
| Statement by employer of regular days, hours, or shifts to be worked. Asking the applicant if they can meet those shift requirements. | Religion | Questions regarding applicant’s religion
Religious days observed /or/ “Does your religion prevent you from working weekends or holidays?” |
| Job-related questions about convictions, except those convictions which have been sealed, expunged, or statutorily eradicated. | Arrest, Criminal Record | Arrest record /or/ “Have you ever been arrested?” (This is a violation of California Labor Code Section 432.7 which is enforced by the Labor Commission.) |
| Questions regarding relevant skills acquired during applicant’s U.S. Military service. | Military Service | General questions regarding military services such as dates and type of discharge.
Questions regarding service in a foreign military. |
| “Please list job-related organizations, clubs, professional societies, or other associations to which you belong — you may omit those which indicate your race, religious creed, color, disability, marital status, national origin, ancestry, sex, or age.” | Organizations, Activities | “List all organizations, clubs, societies, and lodges to which you belong.” |
| “By whom were you referred for a position here?”
Names of persons willing to provide professional and/or character references for applicants |
References | Questions of applicant’s former employers or acquaintances which elicit information specifying the applicant’s race, color, religious creed, national origin, ancestry, physical or mental disability, medical condition, marital status, age, or sex. |
| Name and address of person to be notified in case of accident or emergency. | Notice in Case of Emergency | Name, address and relationship of relative to be notified in case of accident or emergency. |
