Job interview questions are an often overlooked area of discrimination law. Many don’t realize that screening out job candidates via seemingly innocent questions that may touch upon age, gender, or religion is just as illegal as firing an employee because he’s handicapped. The wrong question can easily result in a lawsuit.
Massachusetts anti-discrimination laws govern pre-employment activity as well as conduct that occurs after an employee begins work. The Massachusetts Commission Against Discrimination (MCAD) has published rules to help guide employers as to the questions they can and cannot ask prospective employees. The MCAD’s guidelines on pre-employment inquiry follow:
Age: Generally, the only proper question is, "Are you under 18, yes or no?"
Handicap: Inquiry into whether an applicant has a physical or mental disability or handicap, or about the nature or severity of a disability/handicap is prohibited, as is an inquiry into whether an applicant is alcoholic, drug addicted, or has AIDS.
National Origin: An employer may ask, “Are you legally authorized to work in the United States?" An employer may not inquire into the birthplace of an applicant or the birthplace of his or her parent(s,) spouse and/or other close relatives.
Race: Generally, an employer may not inquire into the race or color of an applicant, and an employer cannot require that a photo accompany a job application.
Religion: No questions are permitted. No inquiry into the religious denomination or practices of an applicant, his or her religious obligations, or what religious holidays he or she observes can be asked.
Gender: Generally, few if any questions can be asked. However, questions regarding gender may be permissible if they relate to a bona fide occupational qualification that has been ruled to be a legitimate requirement for a particular position.
Sexual Orientation: No inquiry into an applicant’s sexuality, (gay, bisexual, lesbian, heterosexual,) is permitted.
Criminal Record: Employers may ask the following series of questions:
1. Have you been convicted of a felony? Yes or no?
2. Have you been convicted of a misdemeanor within the past five years, (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace?) Yes or no?
3. Have you completed a period of incarceration within the past five years for any misdemeanor, (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace?) Yes or no?
4. If the answer to question number 3 above is yes, please state whether you were convicted more than five years ago for any offense, (other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace?) Yes or no?
Education/Experience/References/Organizations: Inquiry into the academic, vocational or professional education of an applicant for employment is permitted. The request shall also contain a statement that the applicant may include in such history any verified work performed on a volunteer basis.
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