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Discrimination in Pre-Employment Inquiries

Discrimination in Pre-Employment Inquiries

The following information provides guidance for job seekers and employers about acceptable and unacceptable questions to ask on a job application or during a job interview. Inappropriate pre-employment inquiries may be used as evidence of Employment Discrimination.

What You May Ask vs. What You Should NOT Ask

National Origin/Ancestry:

What you may ask: What is your current address and phone number? Do you have any alternative locations where you can be reached?
What you should NOT ask: Where were you born?

Directly inquiring into an applicant’s residency in the country or region is not appropriate even though familiarity with the local culture may be important to the job. Employers are not prohibited from asking about place of residence but if applicants are excluded from employment because they live in an area that primarily consists of individuals of a particular racial or ethnic group then it may lead to future discrimination claims.

Religion:

What you may ask: What days are you available to work?
What you should NOT ask: What religion do you practice?

What you may ask: Are you able to work with our required schedule?
What you should NOT ask: What religious holidays do you observe?

Employers may not inquire directly about an applicant’s religious beliefs or practices. However, it is appropriate to inquire into when the applicant is able to work because the employer will need to know if the applicant can work the employer’s schedule. Employers should be cautious because there is a duty to provide a reasonable accommodation for religious beliefs of its employees or applicants.

Age:

What you may ask: Are you over the age of 18?
What you should NOT ask: How old are you? What is your date of birth?

What you may ask: What are your career goals?
What you should NOT ask: How much longer do you plan to work before you retire?

Employers are prohibited from making employment decisions based on the applicant’s age. Therefore inquiring into an applicant's age or retirement plans may lead to discrimination complaints being filed. Asking questions about age may indicate possible intent to discriminate based on age or deter older workers from applying for employment. It is advisable just to make sure that the individual is legally old enough and to find out what the applicant’s career plans are. Inquiries into an applicant’s age are permissible if age is a bona fide occupational qualification.

The Missouri Human Rights Act (the Act) prohibits age discrimination to individuals 40 years of age through 69 years of age. Federal law prohibits age discrimination to individuals age 40 and over.

Sex/Gender:

What you may ask: Are you available to work overtime on occasion? Can you travel?
What you should NOT ask: Do you have or plan to have children? Do you have childcare that is available on short notice or for overnight stays?

What you may ask: Have you worked or earned a degree under another name?
What you should NOT ask: Is this your maiden name?

What you may ask: What do you have to offer our company?
What you should NOT ask: We’ve always had a man/woman do this job. How do you think you will measure up?

Questions regarding number of children and childcare arrangements should not be asked unless they are job-related and then must be asked of all applicants. Employers can inquire about the applicant’s availability for work.

Disability:

What you may ask: Are you able to perform the specific duties of this position?
What you may NOT ask: Do you have any disabilities? Have you had any recent or past illnesses or operation?

An employer is prohibited from asking an applicant about the existence, nature, or severity of a disability. However, an employer may ask questions about the applicant’s ability to perform job-related functions or request a demonstration of the applicant’s ability to perform job-related functions. These questions must be asked of all applicants.

The Missouri Human Rights Act (MHRA) prohibits discrimination against people with disabilities. The MHRA requires employers to make reasonable accommodations for the disabilities of applicants or employees if it does not impose an undue hardship.

General:

What you may ask: Do you use illegal drugs?
What you should NOT ask: Do you take any medications?

What you may ask: We are offering the position, but you must first pass a medical exam.
What you should NOT ask: Please take a medical examination before we can offer you the job.

Employers cannot require an applicant to take a medical examination before making a job offer. Employers may, if it is required for all employees entering similar jobs, require individuals to take a medical examination after an offer of employment has been made. The job offer may be conditioned on the results of a medical examination.

Making pre-employment inquiries that directly or indirectly disclose the applicant’s race, color, religion, sex, national origin, ancestry or age do not constitute a per se violation of the MHRA. However, unless needed for some legal purpose, such as obtaining applicant flow data for affirmative action plans, such inquiries may be important evidence of discriminatory selection. Employers should NOT inquire about matters which may disproportionately exclude members of protected groups, unless the employer can show that the inquiry is job-related and consistent with business necessity.

If you feel you’ve been discriminated after reading these guidelines, you can file a discrimination complaint.