Prohibited Interview Questions And Pre-Employment Drug Testing
This article covers the interview process and whether the employer can ask the applicant to submit to a drug test as a condition of their employment with the company.
The Job Interview
The job interview is an important part of the employee selection process. This is true for both the prospective employee as well as for the employer. The employer should ask interview questions that help identify a candidate’s skills, general disposition, and experience level.
It should never be an opportunity for an employer to exclude job candidates based on the color of their skin, religious beliefs, or the country in which the applicant was born. However, employers can request you take a drug test as a condition of your employment with the company
Questions Employers Cannot Ask at Job Interviews
This article covers the questions an employer is prohibited from asking an applicant during a job interview.
Under The Civil Rights Act, it is unlawful to ask discriminatory questions during a job interview, such as the applicant’s gender, race, age, and national origin.
In addition, recent court cases have held that questions that do not directly relate to the job description for which an applicant is being considered fall under the EEOC guidelines prohibiting unlawful inquiries due to their potential for having a discriminatory purpose and for being irrelevant to the hiring determination.
Questions That Have A Discriminatory Purpose
Examples of questions employers are prohibited from asking due to their underlying discriminatory purpose include:
- Whether they own or ever owned a home
- Whether their home ever went through foreclosure
- Whether they were ever been divorced
- Whether they ever went bankrupt
- Whether they ever had their wages garnished
- Asking about an applicant’s marital status.
Interview Questions Related to Race
An application form cannot ask questions about race or ask to include a photo when mailing in their job application form.
Interview Questions Related to National Origin
An employer is prohibited from asking about an applicant’s national origin or heritage because that might be a form of national origin discrimination. That includes questions about their country or “place of birth.”
An employer cannot ask whether English is their first language. Applicants, as a condition of employment, may ask if they can show proof of being able to work in the United States.
Interview Questions Related to Religion
A potential employer may not ask the applicant about their religion or about their religious beliefs, such as what holy days they observe.
However, the employer may inform the applicant what days they will be required to work. If the applicant responds that their religion prevents them from working on certain days, the employer must make a reasonable faith effort to accommodate the applicant.
Interview Questions Relating to Disability
Should an applicant apply for a job, a potential employer cannot ask on the application form if the applicant has a disability – though he is permitted to ask whether they can physically do certain essential functions of the job with or without reasonable accommodation.
Suppose the applicant’s disability is obvious and is personally present for the interview. The employer may not ask the applicant how bad their disability is – unless the question is substantially related to their ability to perform an essential job function.
For example, if the applicant is hearing impaired and applying for a position where you seldom must listen well to do the job, your employer cannot ask how bad their hearing loss is.
However, the employer can ask whether the applicant will require reasonable accommodations during the application process if the disability is obvious or if the applicant disclosed the disability to the potential employer.
Legal Protection for Dyslexic Job Applicants And Employees
The Two Federal Laws Protecting Dyslexics Are:
- The Americans with Disabilities Act (ADA)
- Individuals with Disabilities Education Improvement Act (IDEA)
The laws fully protect dyslexic employees who request their employers to provide them with reasonable accommodations. The employer must make a good effort to oblige the employee, so long as the accommodations do not result in hardship to the employer.
Asking Applicant To Take A Pre-Employment Drug Test Before Signing An Employment Contract
Employment Contingent on Testing
Under many states, a potential employer can require a job applicant to take a drug test before offering the applicant a job.
However, most states require that the employer must first offer the job to a potential employee before requiring them to take a drug test.
Rejecting Employee After Test Results
Your employer might be able to reject the potential employee if the exam shows that they would be unable to perform the proposed job functions with or without reasonable accommodation.
Remember: If the employer refuses the potential employee after failing the exam, then the applicant will know that the only reason for the rejection was the exam.
Drug testing Must Relate To Employees’ Specific Job Function
The exam must be related to the work the employee will be doing. For example, if you are hiring an office receptionist, the employer shouldn’t ask the applicant to lift 75-pound weights as part of the medical exam. On the other hand, if the employer is hiring someone for a parcel service job, the employer might reject an applicant that can’t lift a 75-pound weight.
Confidentiality Of Exam Results
Generally, the exam results must be kept in a file separate from the employee’s regular personnel file. They should not be revealed to anyone except a medical practitioner, such as the company doctor or, with the employee’s consent, the employee’s physician or by service of a valid and lawful subpoena.
Consult With An Employment Lawyer
Should you have specific questions or require additional information about your legal rights and obligations, we advise you to consult with a verified Employment-Labor Lawyer about your issues as soon as possible.
Reference Source: EEOC
