When interviewing and hiring new employees, there are certain legalities of which you must be cognizant. Ignoring or failing to be aware of these legal issues — from the necessity of reasonable accommodations to the so-called forbidden interview questions — can lead to discrimination disputes, legal obstacles, and ultimately may hinder your success in filling the position.
This article will outline the federal laws in place to prevent bias and discrimination of prospective employees. It will also discuss the legality of medical and drug testing prior to and during employment and the gray-area topic of developing bias by browsing and tracking prospective employees' social media presence.
What are the forbidden interview questions?
Federal laws prevent you from inquiring into certain topics that could create bias or prejudice against the prospective employee. The employee is able to make this information available to you of his or her own accord on a resume or in-person at the interview, but you are not able to prompt them to disclose the information. According to the U.S. Equal Employment Opportunity Commission, the “forbidden topics” are age, gender, race, national origin, marital status, children, disabilities and military status. We will cover these in more detail as follows. (1)
1. Race, national origin, and religious affiliation
You cannot directly ask an application their religious beliefs or country of origin. You are able to ask about any additional languages he or she may speak.
Though some employers have argued that religious obligations could potentially impact work availability and need to be disclosed upfront, it is still not legal to inquire about this directly. You may address any such concerns by asking about any day or time restrictions on the work schedule he or she may have.
If the employee prefers to wear ethnic dress, you cannot discourage it in the workplace unless it does not meet the general dress code requirements for the job or it interferes with the person’s ability to perform the job successfully. (2) The proper way to address this issue is to inform the interviewee of the dress code or dress requirements up front and ask if they would have any objection to wearing such. (3)
2. Age, gender, and sexual orientation
In order to prevent age discrimination, you cannot ask the applicant for his or her age or educational graduation dates (which offer information about age). You can ask if the person is over 18 if that is a requirement for the position but cannot ask for proof of age until after they are hired, as it would provide information about their age. (3)
Additionally, you cannot ask about gender identification or sexual orientation on an interview or afterwards.
3. Marital and family status
Though as an employer, it may seem pertinent to know about the home-life of a prospective employee, you cannot elicit this information. Asking if an applicant is married, has children, is or is planning to become pregnant can lead to discrimination based on presumptions of dedication to the position. (2)
4. Citizenship status
You may inquire as to the employee’s ability to legally work in the U.S. and if he or she would need sponsorship from you as an employer as long as all applicants are asked the same questions. Once the employee is hired, you can ask for proof of citizenship or plans to do so. You are not required by law to provide sponsorship for an employment visa and are able to decline from hiring an applicant who requires such. (1,3)
What about pre-employment testing?
Almost every healthcare position requires both drug/alcohol screening and a medical examination for employment. This is for good reason, since the employee will be involved in patient care in some capacity and testing helps provide a safe and stable work environment.
State laws outline the legality and frequency with which drug and alcohol testing and medical test are permitted pre-employment and for repeat testing. Since this can differ among state lines, we will discuss these in a broad sense.
1. Drug and alcohol testing
As an employer, the goal of drug and alcohol testing is to ensure your employees are of sound mind to provide proper care and maintain a safe workplace. You are able to ask if the applicant uses illegal drugs or has used illegal drugs within the past 6 months. (2) Typically urine tests and/or blood tests are utilized to test for cocaine, marijuana, methamphetamine, opiates and alcohol. (5) If random drug screenings are to be performed, the practices must be uniform across employees without certain employees being targeted.
Testing for marijuana has become a gray-area in states in where it has been legalized. Since marijuana is still an illegal substance according to federal guidelines, it is still considered legal to test for in most scenarios. Some employers are starting to phase out this testing because of the legal issues brought to light. (6)
2. Medical testing
According to federal laws, you cannot inquire into an applicant’s current or past medical conditions. A required physical examination acts solely as a modality to ensure the prospective employee is physically capable of performing the position. Also, all employees performing the same job must be subject to the same battery of medical tests in order to determine if they can successfully and safely perform the job. (1) Any information found on a required physical examination cannot be used against an applicant other than do determine ability to perform the job.
Hospitals and health centers require employees to have up to date vaccinations for public health purposes; this includes an annual flu shot. The complete list of required vaccinations includes Hepatitis B, measles, mumps, rubella, diphtheria, chickenpox, and whooping cough. (7)
Can I still do background checks?
Performing background checks for the purpose of investigating applicant financial history, criminal record, work history and education is legal with the applicant’s written permission. However, once the information is obtained, as outlined by the Equal Employment Opportunity Commission, it cannot be used to discriminate against the applicant.
As an employer you cannot ask a prospective employee if they have been arrested, however, you can ask if they have been convicted of any crimes. A professional background check would provide information on prior convictions and depending on the charge, it may or may not disqualify them from the position. (2)
If you decide not to make a job offer to the employee because of something in the report, there are a few required steps that must be taken. One of them is to provide the applicant with a copy of the report along with a written notice of the reason why they are ineligible for the position. The applicant must also be provided with the contact information of the company who performed the background check and a written notice of their rights under the Fair Credit Reporting Act (which goes along with the report). (1)
In healthcare, the National Practitioner Data Bank plays a significant role in investigating medical malpractice and professional sanctions. Hospitals and organizations are legally able, and in most scenarios required, to request queries on all practitioners upon hiring or upon granting of privileges and every 2 years thereafter. Private practices can also request a self-query report from an applicant but the applicant is not legally required to provide it. The only parties able to access information directly from the Data Bank are the individual practitioners in the form of a self-query and healthcare organizations which have meet federal guidelines. (8)
3. Social media
While it may be tempting to browse an applicant’s social media accounts, this has become an increasing source of lawsuits by applicants not receiving job offers. There are companies dedicated to performing this type of background check. Similar to regular background check results, anything uncovered from Facebook, Twitter, Youtube, or Instagram is still subject to the federal laws as dictated by the Equal Employment Opportunity Commission. If a company has ethical guidelines and conduct policies outlined in the contract and information is discovered that is against the policy, this information can legally be used to the detriment of the applicant. Any information found related to national origin, religion, gender, marital status etc. as discussed earlier, cannot be legally used against the applicant. (9) The gray-area arises once the social media accounts are viewed and there is evidence of such, that an applicant can claim that he or she was not hired due to bias based on any of the illegal factors previously mentioned. For this reason, it is advised that if you are goito use a social media background check, it be performed on every applicant and by a professional company that will only disclose the relevant information. This method prevents any accusations of biased decision-making.
How does the Americans with Disabilities Act affect hiring?
The Americans with Disabilities Act prevents discrimination against qualified individuals based on the presence of a disability. (4) You cannot ask a potential employee if they have any disabilities; however, you can outline the physical requirements of the position and ask if they will be able to perform those functions. You can also ask if they would need any reasonable accommodation to perform the functions and if so, what are those accommodations. (3)
Any accommodations that are considered “reasonable” would be your responsibility to facilitate (according to the protocol and timeline established by the Equal Employment Opportunity Commission). Examples of reasonable accommodations would be a re-arrangement of work space for improved wheelchair access, or allowing scheduled breaks for a diabetic to check blood sugar. As an employer, you do have the ability to deem certain accommodations as causing “undue hardship” and are able to submit proof of the expense and/or difficult alterations that would need to made. There are no specific guidelines for this and disputes of this nature are handled by the commission as well. (1)
How does the Family and Medical Leave Act affect me?
The Family and Medical Leave Act allows employees to take unpaid time-off while maintaining job protection and insurance provided by the employer. Therefore, if a new employee is hired and falls ill or has a family member become seriously ill, he or she cannot be discriminated against or fired from the job. They must provide proof that the absence is due to a specific medical condition, but you are required to hold the position for up to 26 weeks (unpaid) during a calendar year. (4)
An exception to the rules listed above is if any of the “forbidden” topics have actual relevance to the job position. There must be a specific reason that the information is pertinent and all candidates for the position should be asked the same interview questions. (2)
Since the actual goal of the interview is to successfully find a great candidate for the position, keep your questions on the candidate’s qualities, abilities, motivation and skills related to the position! (10) After the employee is hired, you will have access to age, marital status, number of dependents, and citizenship status for insurance and tax info. Inquiring into these areas is considered unethical and can open you up to lawsuits of unfair hiring practices; it can also potentially steer away a great candidate!
- U.S. Equal Employment Opportunity Commission. “Prohibited Employment Policies/Practices.” EEOC.
- Giang, V. “11 Common Interview Questions That re Actually Illegal.” Business Insider. July 5, 2013.
- The University of Texas. “Legal vs. Illegal Interview Questions.” UTHealth.
- Department of Labor. “Americans with Disabilities Act.” Department of Labor.
- Doyle, A. “Things you should know about pre-employment drug screening.” The Balance. March 15,2018.
- Reshwan, R. “How to handle pre-employment drug testing where marijuana is legal.” U.S.News: Money. June 17, 2017.
- Fox, M. “They didn’t get vaccinated. Now they’re out of jobs.” NBC News. Nov. 2, 2017.
- U.S. Department of Health and Human Services. “National Practitioner Data Bank.”
- Doyle, A. “Social media background checks.” Sept 10, 2017. The Balance.
- Onely, D. “These Interview Questions Could Get HR in Trouble.” Society for Human Resource Management. June 19,2017.
The foregoing is provided for informational purposes only, is not an advertisement, does not constitute legal advice or legal opinion, and does not create an attorney-client relationship. The content may not apply to the specific facts or a particular matter. You should not act or rely on any information contained in this article without first seeking the advice of an attorney licensed to practice in your jurisdiction.