EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
All Statutes: Pre-employment Inquiries
As you requested, we have reviewed the [state agency's] brochure, "Successfully Interviewing Job Applicants." Our comments are limited to federal EEO laws and do not include the [state law], which is outside of our jurisdiction. We have several comments and suggested revisions.
Much of the brochure's advice is prefaced with statements that the EEOC and the [state law] warn, advise, or caution against certain pre-employment inquiries. We recommend deleting these references. First, in some instances the references to EEOC are inaccurate because the EEOC has not specifically enunciated policy on the particular point. In others, the references are inaccurate because there are discrepancies between the [state law] and federal EEO laws on the particular point. Finally, as a stylistic matter, we think that the brochure would be easier to read with straightforward statements of EEO principle, without the distraction of repeated references to the EEOC and the [state agency].
We also have the following comments and suggested revisions.
Page 3: Using the term "energetic" in a help wanted ad does not indicate an age preference under the ADEA. See EEOC Enforcement Guidance, "Job Advertising and Pre-Employment Inquiries under the ADEA," July 1989. (Page 4, Example 1).
Using the term "only retired persons" would not violate the ADEA. The ADEA protects employees age 40 and over and the Supreme Court recently held that the ADEA does not prohibit employers from favoring an older employee over a younger employee when both are protected by the Act. General Dynamic Land Systems, Inc. v Cline, 540 U.S. 581 (2004). Because the [state law] apparently protects persons 18 and above, the [state law] may be interpreted differently than the ADEA in this regard.
Page 6: The description of the ADA should include a discussion of reasonable accommodation and the discussion of reasonable accommodation under the Rehabilitation Act should be amended as follows: "Employers are required to make "reasonable accommodations" for disabled employees who are qualified to perform the essential functions of their jobs, unless such accommodation would impose an "undue hardship" on the operation of the employer's business."
Page 7: Age, Date of Birth Section.
We suggest adding the following after the first sentence. "However, the ADEA does not prohibit employers from favoring an older employee over a younger employee."
We would also revise the second and third sentences in paragraph three of this section as follows:
Asking applicants what years they attended high school, and/or what year they graduated from high school or college, does not directly violate the ADEA, but could be interpreted as a method of discriminating against applicants based on age. Unless graduation dates are needed for a specific purpose, it is preferable to ask where they went to school and what degree they obtained. Verifying the applicant's education may be one such lawful purpose.
Asking an applicant's age does not necessarily violate the ADEA. See ADEA regulations at 29 C.F.R. §1625.5. Those regulations do note, however, that such inquiries will be closely scrutinized to insure that they are for a lawful purpose.
Page 7: Arrests and Convictions (Other than Traffic Violations)
For the reasons noted above, we would delete all references to the EEOC in this section. We would also discuss convictions before discussing arrests and revise section on convictions as follows. We would revise the end of the section, as indicated in bold:
. . . (3) the nature of the job held or sought. Thus, a blanket exclusion based on conviction records can seldom be justified. Application forms that asking about conviction records should include a statement to the effect that whether a conviction will disqualify an applicant depends on the nature of the offense, the nature of the job, and the length of time since the conviction and incarceration.
We also recommend revising the discussion of arrest records, as shown in bold:
. . . adverse impact on the employment opportunities of those groups. Thus, such records alone cannot be used to routinely exclude persons from employment. Exclusion is justified only if it appears that the applicant or employee engaged in the conduct for which he was arrested and the conduct is job-related and relatively recent.
If an applicant has an arrest record, the employer should examine the surrounding circumstances, offer the applicant an opportunity to explain, and, if (s)he denies engaging in the conduct, make follow-up inquiries to evaluate his/her credibility. After considering all of the circumstances, if the employer reasonably concludes that the applicant's conduct is evidence that (s)he cannot be trusted to perform the duties of the position in question, the employer may reject the applicant.
Page 8-9: "Citizenship, Immigration" Section
Questionable Statement in Brochure: "The EEOC advises that where a citizenship requirement is intended to discriminate on the basis of national origin, the employer must show that national origin constitutes a bona fide occupational qualification."
If an employer believes that being of a particular national origin is a BFOQ for a certain position, it should state that a member of the particular national origin group is needed for the position. However, the BFOQ defense is very narrow and we have found no case in which a court recognized a national origin BFOQ.
We suggest that the second paragraph of this section be rewritten as follows:
Imposing a citizenship requirement for the purpose of excluding people on the basis of national origin violates Title VII. Even if a citizenship requirement is not intentionally discriminatory, Title VII can be violated if the requirement disproportionately excludes persons of a particular national origin and the employer cannot establish that the requirement is job related and consistent with business necessity. See the next two subsections for information on IRCA's prohibitions against employing undocumented workers and its non-discrimination provisions.
Page 9: "Use of Native Language" Section
This section states that an English-only policy may be justified as a bona fide occupational qualification or by business necessity. The reference to bona fide occupational qualification should be deleted. As previously noted, the BFOQ defense applies only if an employer can show that hiring on the basis of national origin is reasonably necessary to carrying out a particular job function in the normal operation of an employer's business. If an English-only policy has an adverse impact on national origin, an employer must justify it by showing that the policy is job related and consistent with business necessity.
As a style matter, we note that the last sentence of the paragraph is superfluous.
Page 10: Medical Examinations Section
Second paragraph. "The need for the examination may be triggered by some [objective] evidence of problems related to job performance or safety." The employer's evidence of job-related problems should be objective.
Page 13: Dress & Appearance Section
Religious accommodation of dress or grooming policies should be mentioned in this section. When an employer has a dress or grooming policy that conflicts with the practices or beliefs of an employee's religion, the employee may ask for an exception to the policy as a reasonable accommodation. For example, religious grooming practices may relate to shaving or hair length. Religious dress may include clothes, head or face coverings, jewelry, or other items. Absent undue hardship, an employer must accommodate the employee's religious dress or grooming practices.
Page 13: "Friends or Relatives Working for Us" Section.
We suggest that you change "nepotism policy" to "anti-nepotism policy." We also recommend that you add the following:
Title VII may be violated if the employer's work force consists primarily of one race or ethnic group and the employer hires only friends and relatives of employees.
Page 18: "Questions related to applicant's use of alcohol" is listed as an acceptable pre-employment inquiry. The question should be revised as follows.
Questions concerning an applicant's use of alcohol may be asked, unless the particular question is likely to elicit information about alcoholism, which is a disability.
An employer may ask an applicant whether (s)he drinks alcohol, or whether (s)he has been arrested for driving under the influence because these questions do not reveal whether someone has alcoholism. However, questions asking how much alcohol an applicant drinks or whether (s)he has participated in an alcohol rehabilitation program are likely to elicit information about whether the applicant has alcoholism.
We also suggest cross-referencing the alcohol and drug abuse section on page 12.
Page 19: Relative/Friends Inquiry. Change nepotism policy to anti-nepotism policy.
We hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-12(b). If you have additional questions, please contact Teresa Guerrant at (202) 663-4653.
Dianna B. Johnston
Assistant Legal Counsel
This page was last modified on April 27, 2007.
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