Legal Hiring Considerations

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Federal Employment Regulations

Seattle Pacific University Notice of Nondiscrimination Policy

Discrimination Grievance Procedure

What You Should Know About Fair and Unfair Employment Inquiries

Complying With The ADA: Do's and Don'ts For Interviews

When to Ask Human Resources For Assistance

Supplemental Reading

United Educators - Effective and Legal Hiring Practices


Federal Employment Regulations

This section contains detailed information about federal laws that prohibit employment discrimination, and information about fair and unfair pre-employment inquiries. Two important laws are:

  • The Civil Rights Act of 1964.

    The Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, sex, religion and national origin.

  • American with Disabilities Act (ADA).

    The ADA prohibits employment discrimination based on disabilities (or perceived disabilities). Although the details of this Act will be covered by an entirely separate section of the supervisorís manual, weíve included a comprehensive list of "Doís and Doníts" regarding pre-employment ADA related inquiries (see page 8). Other important employment laws are listed in the following chart:

Chart of Federal Regulations and Requirements

Regulation

Requirements

Title VII of the Civil Rights Act of 1964 Prohibits discrimination on basis of race, color, sex, religion*, national origin.
Equal Pay Act of 1963 Prohibits different rates of pay based on sex.
Age Discrimination in Employment Act (ADEA) Prohibits discrimination on the basis of age for people 40 and over.
Rehabilitation Act of 1973 (Section 504) Prohibits discrimination on the basis of a disability.
Immigration Reform & Control Act of 1986 (IRCA) Requires employers to complete an employment eligibility verification form on anyone hired after 11/06/86.

What You Should Know About Fair and Unfair Employment Inquiries

Anyone involved in any interview process must avoid asking unfair pre-employment questions. Interview questions are considered fair when they related to a person’s ability to perform the actual job duties.

The table below provides examples of fair and unfair inquiries in reference to job application forms, preemployment interviews, or any other type of inquiry made of job applicants. Any questions which give the appearance of taking a candidate's race, creed, color, national origin, age, sex, marital status, or any sensory, mental or physical handicap into consideration for discriminatory purposes must be avoided. Nothing in these rules prevents employers from asking questions to determine which candidate is most qualified to perform the essential functions of the job. The rules in this table were developed in order to prevent characteristics which have nothing to do with a person's ability to do the job from influencing the selection process. Individuals participating in the selection process should review the following chart, developed by the Washington State Human Rights Commission, prior to screening application materials, contacting references (ether verbally or in writing) and interviewing. The chart is to be used as a guide; examples are not exhaustive.  As a religious organization, the University is not subject to Washington State HRC rules and regulations, but the University is subject to Federal laws which contain similar prohibitions with respect to employment discrimination. For this reason, the chart that follows will serve as a helpful reference tool for supervisors. As a religious organization, the University is not subject to Washington State HRC rules and regulations, but the University is subject to Federal laws which contain similar prohibitions with respect to employment discrimination. For this reason, the chart that follows will serve as a helpful reference tool for supervisors.


Questions That Should Not Be Asked During An Interview

Supervisorís Note: Please ensure that all personnel involved in any interview process are careful to avoid asking unfair pre-employment questions. Appropriate questions are those that relate to a personís ability to perform the essential job duties.

Pre-employment inquiries that are unfair include, but are not limited to, the following:

Age: Birthdate? How old are you?

Family: Specific questions concerning spouse, spouseís employment or salary, children, child care, or dependents.

Height and weight: Any question that is not based on actual job requirements.

Martial status: Are you married? Divorced? Separated?

Pregnancy: All questions related to pregnancy, medical history or any related matter.

Race or sex: What is your race? Sex? Request of the applicant to furnish a photograph. Hair and eye color?

Religion: For most employers, questions regarding a personís religious beliefs are unfair. SPU has an exception from Title VII of the Civil Rights Act of 1964. As an educational institution operating under the auspices of the Free Methodist Church of North America, SPU is permitted and reserves the right to prefer employees on the basis of religion.

Click on the links to learn more about fair and unfair preemployment inquiries:

Age Disabilities Military Service Photographs Religion or Creed
Arrests Family Name (origin) Pregnancy Residence
Citizenship Height or Weight National Origin Race or Color Sex
Criminal Convictions Marital Status Organizations Relatives  

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Age Inquiries as to birth date and proof of true age are permitted by RCW 49.44.090. Any inquiry which is not in compliance with RCW 49.44 and/or which implies a preference for persons under 40 years of age. People age 40 or older are protected. Birthdate?

How old are you?

If it is necessary to know that someone is over a certain age for legal reasons, this question could be better stated, "Are you 21 or over?" or, "Are you 18 or older?"
For age discrimination, RCW 49.44.090 must be read in conjunction with RCW 49.60.180 and 49.60.200. RCW 49.44.090 limits age discrimination coverage to persons 40 years of age and older, and makes other limitations and exceptions to the age discrimination law.

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Arrests 

(See also Convictions)

 
Because statistical studies regarding arrests have shown a disparate impact on some racial and ethnic minorities, and an arrest by itself is not a reliable indication of criminal behavior, inquiries concerning arrests must include whether charges are still pending, have been dismissed, or led to conviction of a crime involving behavior which would adversely affect job performance, and the arrest occurred within the last ten years. Exempt from this rule are law enforcement agencies and state agencies, school districts, businesses and other organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons, developmentally disabled persons or other vulnerable adults. Any inquiry which does not meet the requirement for fair preemployment inquiries.    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Citizenship Whether applicant is prevented from lawfully becoming employed in this country because of visa or immigration status. Whether applicant can provide proof of citizenship, visa, and alien registration number after being hired. Whether applicant is a citizen. Any inquiry into citizenship which would tend to divulge applicant's lineage, ancestral or national origin, or birthplace.    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Convictions (See also Arrests) Statistical studies on convictions and imprisonment have shown a disparate impact on some racial and ethnic minority groups. Inquiries concerning convictions (or imprisonment) will be considered to be justified by business necessity if the crimes inquired about relate reasonably to the job duties and if such convictions (or release from prison) occurred within the last ten years. Law enforcement agencies, state agencies, school districts, businesses and other organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons, developmentally disabled persons, or other vulnerable adults are exempt from this rule. Inquiries concerning convictions and imprisonment which either do not relate reasonably to job duties or did not occur within the last ten years will not be considered justified by business necessity.    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Disability Whether applicant is able to perform the essential functions of the job for which the applicant is applying, with or without reasonable accommodation. Inquiries as to how the applicant could demonstrate or describe the performance of these specific job functions with or without reasonable accommodation. NOTE: Employers are encouraged to include a statement on the application form apprising applicants that if they require accommodation to complete the application, testing or interview process, to please contact the employment office, personnel or human resources department or other office as may be able to assist them. Inquiries about the nature, severity or extent of a disability or whether the applicant requires reasonable accommodation. Whether applicant has applied for or received workerís compensation. Also any inquiry that is not job related or consistent with business necessity. Do you have , or have you ever had: cancer?

epilepsy?

addiction to drugs?

addiction to alcohol?

an on-the-job injury?

An otherwise qualified person cannot be refused employment because of a mental or physical disability that would not prevent them from performing the essential functions of the job.  Please contact the Human Resources Office if you have any questions.

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Family Whether applicant can meet specified work schedules or has activities, commitments or responsibilities that may prevent him or her from meeting work attendance requirements. Specific inquiries concerning spouse, spouse's employment or salary, children, child care arrangements, or dependents.    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Height and Weight Being of a certain height or weight will not be considered to be a job requirement unless the employer can show that all or substantially all employees who fail to meet the requirement would be unable to perform the job in question with reasonable safety and efficiency. Any inquiry which is not based on actual job requirements and not consistent with business necessity.    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Marital Status (see also Name and Family) None. () Mr. () Mrs. () Ms. Whether the applicant is married, single, divorced, separated, engaged, widowed, etc. Are you married?

Divorced?

Separated?

Since it is illegal to discriminate on the basis of marital status all of these inquiries are inappropriate. Oneís marital status has nothing to do with oneís ability to perform the job, nor is it an effective means of discerning oneís character.

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Military Inquiries concerning education, training, or work experience in the armed forces of the United States. Type or condition of military discharge. Applicant's experience in other than US armed forces. Request for discharge papers.    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Name Whether applicant has worked for this company or another employer under a different name and, if so, what name. Name under which applicant is known to references if different from present name. Inquiry into original name where it has been changed by court order or marriage. Inquiries about a name which would divulge marital status, lineage, ancestry, national origin or descent.    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

National Origin Inquiries into applicant's ability to read, write and speak foreign languages, when such inquiries are based on job requirements. Inquiries into applicant's lineage, ancestry, national origin, descent, birthplace, or mother tongue. National origin of applicant's spouse or parents. Are you native born or naturalized?

Requirement of proof of citizenship.

Birthplace of parents or spouse.

It is necessary to require proof of citizenship or immigrant status, employment can be offered on the condition that such proof be supplied.

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Organizations Inquiry into organizations to which an applicant has membership, excluding any organization the name or character of which indicates the race, color, creed, sex, marital status, religion, or national origin/ancestry of its members. Requirement that applicant list all organizations, clubs, societies, and lodges to which he/she belongs.    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Photographs May be requested after hiring, for identification purposes. Request that applicant submit a photograph, mandatory or optionally, at any time before hiring.    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Pregnancy Inquiries as to a duration of stay on job or anticipated absences which are made to males and females alike. All questions as to pregnancy, medical history concerning pregnancy, and related matters.    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Race or Color None. Any inquiry concerning race or color of skin, hair, eyes, etc.   If it is necessary to ask for this information for affirmative action purposes, these inquiries should be accompanied by a statement indicating that the information is needed for affirmative action reporting purposes and will not be used to discriminate.

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Relatives Names of applicant's relatives already employed by this company or by any competitor. Any other inquiry regarding marital status, identity of one's spouse, or spouse's occupation are considered unfair practices    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Religion or Creed None. However, SPU has an exemption from Title VII of the Civil Rights Act of 1964. We are allowed to prefer employees or applicants on the basis of religion.      

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Residence Inquiries about addresses to the extent needed to facilitate contacting the applicant. Names or relationships of persons with whom applicant resides. Whether applicant owns or rents own home.    

Protected Status

Fair Pre-employment Inquiries

Unfair Pre-employment Inquiries

Inappropriate Inquiries

Comments

Sex None. Any inquiry concerning gender is prohibited.    

Complying with the Americans with Disabilities Act (ADA): Do’s and Don’Ts for interviews

The ADA was enacted to remove barriers preventing qualified individuals with disabilities from enjoying the same employment opportunities available to persons without disabilities. The following "Do’s and Don’Ts" and sample questions take a conservative approach regarding pre-employment inquiries.
The following are examples of questions that should not be asked during interviews or for reference checks.

DO NOT ASK:

    • questions about whether the individual has a current disability or a past disability.
    • whether the individual has any disabilities or impairments that may affect performance in the position.
    • Whether the applicant has any physical defects that preclude the applicant from performing certain kinds of work, or ask the applicant to describe such defects or specific work limitations.
    • Whether the individual has any serious illness (such as AIDS), back problems, a history of mental illness, or any other physical or mental condition
If an individual has an obvious disability (such as an applicant that is missing a limb or uses a wheelchair),

DO NOT ASK:

    • how the individual became disabled or the prognosis for the applicant.
    • questions about the nature or severity of the applicant’s disability.
    • about problems the individual has had because of a disability.
    • whether the individual wears a hearing aid or needs to wear glasses while on the job.
    • questions about the applicant’s past on-the-job injuries, or whether the individual has ever received an award of workers’ compensation benefits.
    • whether the applicant has had a major illness in prior years, or whether he/she has any current illnesses.
    • how many days the applicant was absent from work last year because of illness.
    • about the applicant’s medical problems by requesting the applicant to identify if he or she has or has ever suffered from a list of ailments.
    • whether the applicant has ever been treated for any mental condition.
    • whether the individual has ever been hospitalized and, if so, for what condition.
    • whether the applicant is taking or has been taking any prescribed drugs.
    • whether the applicant has a sexually transmitted disease, such as the HIV virus.
    • whether an applicant has ever requested and/or received assistance or assistive devices in performing past jobs.
    • about an applicant’s past or current need for or receipt of medical or disability benefits.
    • about an applicant’s past drug use or alcohol use, or whether an applicant is or ever has been a drug addict or an alcoholic.
    • whether the individual has a spouse, children or other friends with disabilities.
The following questions may be asked during interviews or for reference checks as long as they are asked of all persons applying for a particular category of job, regardless of disability

DO:

    • ask whether the individual needs any reasonable accommodations or assistance during the hiring or interviewing process.
    • ask about the individual’s ability to perform essential job functions.
    • give a copy of the job description to the individual that identifies all essential functions and ask whether the individual is able to perform all of those essential functions with or without a reasonable accommodation.
    • describe the job and ask whether the individual can perform those functions.
    • ask about current use of illegal drugs or current alcohol use.
    • state SPU’s standards and expectations and ask if the individual can meet those standards (e.g., SPU’s drug policy, smoking policy, etc.)
    • ask questions about any of the qualifications that are required for the position, including education, experience, licenses, training, basic reading and writing skills, mathematical skills, and other minimum qualifications.
    • ask about the individual’s attendance at prior jobs, if the question is limited to days off or number of days late for any reason, and is not limited to days missed due to illness.
    • ask whether the individual has ever been involved in an accident on-the-job that injured coworkers or customers.
    • ask about an individual’s accident record, especially accidents involving injury to property (such as traffic accident history for persons who will do driving) if you avoid questions about the individual’s own injuries.

IF the individual has an obvious disability known to you that you reasonably believe may interfere with or prevent the individual from being able to perform the essential functions of the job, it is permissible to ask the individual to explain or demonstrate how he or she can perform the essential functions of the job with or without a reasonable accommodation.

IF an applicant has a known or obvious disability that would NOT interfere with or prevent performance of the job, you CANNOT ask or require the applicant to demonstrate performance of a job function, unless all applicants for those positions are required to do so.


Things to avoid when making hiring decisions:

Do Not:

  • Refuse to hire an individual because the individual has asked for an accommodation.
  • Refuse to hire or consider an individual for a position merely because that person has a disability or is associated with a disability.
  • Refuse to consider or hire a person merely because that person has filed a past worker’s compensation claim.
  • Refuse to hire a person because you think that they may pose a threat to the health and safety of themselves or others. The decision cannot be made based on speculation; it requires the input of the Office of Human Resources to ensure that the decision is reasonable.

IF the position for which the individual is applying is one where the institution requires a medical examination, YOU MUST inform all applicants for the position that any offer of employment is conditioned upon the satisfactory results of a medical examination.


When to ask Human Resources for assistance

Contact the Office of Human Resources for advice and guidance whenever you have an applicant who requests a reasonable accommodation.