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1. As an employer, do you prefer married employees?
2. As an employer, do you prefer employees with children?
3. As an employer, do you prefer employees that never were arrested (different from convicted or tried)?
4. As an employer, do you prefer employees whom attend a church or synagogue?
5. As an employer, do you prefer employees whom attend clubs or social organizations?
6. As an employer, do you prefer employees from certain places or origin?
7. As an employer, do you prefer employees with a certain credit score or rating?
8. As an employer, do you hire or consider employees with substance abuse issues?
9. As an employer, do you hire employees with extensive experience working in this area (regardless of age)?
10. As an employer, do you prefer male employees?
11. As an employer, were you ever accused of discriminating against protected classes of employees?
12. As an employer, do you have a history of discrimination or selective and unusual hiring practices (bias)[i]?
[i] 1. Are you married?
This is a common question that seems fair enough. Single people without families usually have more time to do their job. Asking a job applicant, especially a female job applicant, about her marital status, however, likely has nothing to do with her qualifications for the job or any business necessity and may be seen as a question based on stereotypes attributed to her sex or about her sexual orientation. As a general rule, it is best to stay away from any question about a job applicant's personal life.
2. Do you have children?
For these same reasons, you should not ask a job applicant whether he or she has children or wants to have children. If you want to know something about the applicant's willingness or ability to devote time to work, ask those questions. What hours can you work? Do you have other commitments or activities that may interfere with the job's requirements (such as traveling)? Can you or will you work overtime or on weekends? You can find out what you want to know without asking a bad question about a job applicant's personal life.
3. Have you ever been arrested?
Most employers would like to know this, but for most jobs they should not ask the question. In this country, people are assumed to be innocent until proven guilty. Without a conviction or a plea agreement, being arrested does not mean someone is a bad person, and being arrested, but innocent, has nothing to do with job qualifications or business necessity. Moreover, a statistically disproportionate number of racial minorities are arrested or wrongly accused of crimes. The EEOC reports that African Americans and Hispanics are arrested at a rate two to three times their proportion of the general population. So asking the question itself may be seen as unlawful race or national origin discrimination.
On the other hand, you may ask whether a job applicant has been convicted of a crime and, with the applicant's written permission, conduct a criminal background check to test the answer. Of course, you must ask such questions of every applicant, not just minority applicants. You may also ask about the specific conduct that concerns you, rather than an arrest record, if the conduct is job related and consistent with business necessity. Ask whether the applicant has ever stolen from his or her employer, rather than whether he or she has ever been arrested for embezzlement.
4. Do you go to a church or synagogue?
Unless you are a church or synagogue, you should never ask a job applicant about his or her religious affiliation. Title VII prohibits religious discrimination in any form. This includes failing to hire an applicant because of his or her sincerely held religious beliefs. Religious beliefs are personal and in most cases wholly irrelevant to any job qualification or business necessity. You can, however, ask if someone is available or willing to work on a Saturday or Sunday if the question is job related and consistent with business necessity.
5. Do you belong to a club or social organization?
This seems like an innocent question, but it isn't. Asking about a job applicant's club affiliations or social activities could be seen as asking about his or her religion, ethnicity or sexual orientation, things that usually have nothing to do with job qualifications or business necessity. The problem is that clubs and social organizations often reflect an applicant's religious and cultural beliefs. Stay away from asking anything that may be seen as probing such beliefs.
6. Where are you from?
This also seems like an innocent question, but if the job applicant has a foreign accent or is acting like someone who is not from around here, asking where he or she is from may look like unlawful natural origin discrimination.
7. How is your credit?
Like an arrest record, being in debt or having a bad credit score does not mean someone is a bad person and likely has nothing to do with job qualifications or business necessity. By law, employers have to obtain an applicant's permission and follow strict federal guidelines before investigating someone's credit history. And even then they run the risk of violating Title VII because of the statistically disproportionate number of racial minorities who are unemployed or are in debt or have bad credit. Unless there is some strong relation to job qualifications or business need, you probably should not ask the question.
8. Do you drink?
Employers may frown upon drinking or drug use, but should not ask a job applicant about such things because alcoholism and drug addiction are disabilities protected by the Americans with Disabilities Act of 1994, as amended, and similar state laws that prohibit discrimination on the basis of qualifying disabilities. It is the disability, not the behavior, that is protected, however, and being drunk or high at the interview is not a protected behavior. You can, however, ask an applicant if he or she is currently using illegal drugs, except that, in Arizona, you should not ask a job applicant whether he or she is a medical marijuana patient. You can also condition an applicant's employment on passing a drug screening test after he or she is hired, but you must comply with Arizona laws that govern that process.
9. How much longer do you plan to work before retiring?
You might as well ask: How old are you anyway? The question alone may violate the Age in Employment Discrimination Act of 1967 and similar state laws that prohibit discrimination in employment decisions based on a job applicant's age of 40 or more years. You may not ask how old the applicant is, and you should not ask any question that may be seen as gathering clues about the applicant's age. You may, however, ask questions about the applicant's experience in the type of work he or she is applying for, what the applicant's long term career goals are, and similar job-related questions that do not have anything to do with his or her age.
10. When is your baby due?
Trust me on this one. Even if the job applicant looks as if she is about to give birth during the interview, do not ask her if she is pregnant or when her baby is due or anything about her obvious condition. In fact, never ask any applicant if she plans to get pregnant, whether she wants to have children or anything remotely related to pregnancy issues. Asking such questions may be seen as a violation of the Pregnancy Discrimination Act, an amendment to Title VII that expressly prohibits discrimination based on such issues. It has also been characterized as sex discrimination under Title VII due to the statistically disproportionate number of men who are or can become pregnant.
• Were you treated differently than a similarly situated person who is not in your protected class?
• Did managers or supervisors regularly make rude or derogatory comments directed at your protected class status or at all members of your class and related to work? For example, "Women don't belong on a construction site" or "Older employees are set in their ways and make terrible managers."
• Are the circumstances of your treatment so unusual, egregious, unjust, or severe as to suggest discrimination?
• Does your employer have a history of showing bias toward persons in your protected class?
• Are there noticeably few employees of your protected class at your workplace?
• Have you noticed that other employees of your protected class seem to be singled out for adverse treatment or are put in dead-end jobs?
• Have you heard other employees in your protected class complain about discrimination, particularly by the supervisor or manager who took the adverse action against you?
• Are there statistics that show favoritism towards or bias against any group?
• Did your employer violate well-established company policy in the way it treated you?
• Did your employer retain less qualified, non-protected employees in the same job?
https://www.workplacefairness.org/proving-employment-discrimination
• Are you a member of a protected class? For example, if you are claiming age discrimination, are you over 40? If you are claiming disability discrimination, are you disabled?
• Were you qualified for your position? For example, if your job required you to be a licensed technician, were you licensed?
• Did your employer take adverse action against you? Adverse action includes hiring, promotions, termination, compensation and other terms and conditions of employment.
• Were you replaced by a person who is not in your protected class (or, in the case of age discrimination, someone substantially younger than you)? For example, if you are disabled, were you replaced by someone who is not disabled?
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