Preventing Discrimination in Employment Practices

Recognizing Discriminatory
Pre-Employment Inquiries
John M. Ybarra
Workforce System Equal Opportunity Officer
Kansas Department of Commerce
Disclaimer: The information contained herein is prepared in summary form for educational
purposes and does not constitute legal advice which may often turn on specific facts.
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What is a Pre-Employment Inquiry?
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Employment Interview Questions
Employment Application Questions
Job Advertisement Language
Recruitment Brochure Language, etc.

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Federal Anti-Discrimination Laws
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Title VII of the Civil Rights Act of 1964
prohibits employment discrimination based on
race, color, religion, sex and national origin.
The Americans with Disabilities Act prohibits
discrimination against qualified individuals
with disabilities.
The Age Discrimination in Employment Act
protects individuals 40 years of age or older.
The Equal Pay Act protects men and women
who perform substantially equal work in the
same establishment from sex-based wage
discrimination.
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What is Employment Discrimination?
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Employment discrimination occurs when
job applicants and employees are treated
unfairly based on their race, color,
ethnicity, gender, sex, national origin,
religion, age, disability, or genetics.

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Each of these categories is known as a
“protected group” or “protected

status.”
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Disparate Treatment Discrimination
Intentionally treating applicants or employees from a
protected group differently than others.
Examples:
 Evaluating responses by black applicants
differently than white applicants.
 Testing female applicants differently than male
applicants.
 Asking job applicants about their past or current
medical conditions, or requiring certain job
applicants to take medical exams.
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Disparate Treatment
Illegally Screening Applicants
A company executive contacts an employment
agency to hire a new administrative assistant
saying she wants to interview candidates with
excellent clerical skills who relate well with high
level executives. The agency searches the resume
database which produces 50 qualified candidates.
To reduce this to a more manageable number the
agency refines the search to eliminate candidates
living in mostly Black or Latino zip codes.
This is Disparate Treatment and violates title VII of

the Civil Rights Act.
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Adverse Impact Discrimination
Neutral employment practices that unintentionally
discriminate against a protected group.

Examples:
 Height and weight requirements
 Educational requirements
 Physical agility tests
How is this discriminatory though?
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Adverse Impact Occurs…
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When height and weight requirements
unrelated to job performance exclude
women and persons with disabilities.
When employers require an educational
level that does not match the job duties
and it negatively impacts persons of color.
When physical agility tests unrelated to job

performance exclude women and persons
with disabilities.
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Valid Business Necessity
Defense to Discrimination
A valid business necessity is a job requirement
that excludes a particular group but is
necessary for safe and efficient job
performance.
“Job Related and Consistent with Business Necessity”

Examples:
 Height requirements for pilots
 Age requirement for FBI agents
 Commercial pilots must have 500 flight hours
and a college degree
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Bona Fide Occupational Qualification
Defense to Discrimination
A job requirement that can only be met by applicants
of a certain sex, religion, age or national origin.
Examples:
 A French Restaurant hires only French Chefs.
 Only males can work as a men’s room attendant.
 Employees must be 21 years old to serve alcohol.
 Applicant must be of a certain religion to be a

clergy member.
*Race and Color can never be a BFOQ.
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Discriminatory Practices
Yielding to Customer Racial Preference
ACME Home Care hires personal aides to provide
in-home assistance to elderly persons. ACME
has mostly white clients who have exclusively
requested white aides. Gladys, an experienced
African-American aide applies with ACME
because it offers better pay. ACME wants to hire
Gladys but decides not to because it believes its
clients would not be comfortable with an African
American aide.
The employer has violated Title VII because customer racial preference
is not a BFOQ.
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Job Title Language
Inadvisable
Acceptable
Barmaid…………………………………… Server, Cocktail Server
Bus Boy, Tray Girl……………………….. Busser, Cafeteria Worker
Cleaning Woman………………………….
Cleaning Assistant,
Room
Attendant

Draftsman………………………………….Drafter, Auto CAD Specialist
Fireman…………………………………….
Fire Fighter
Fisherman………………………………….Fisher
Foreman…………………………………... Supervisor
Handyman………………………………… Miscellaneous Repairer
Journeyman *……………………………...Journey Level
Leadman…………………………………...
Crew, Shift or Team
Leader
Longshoreman…………………………….
Longshore Worker

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Job Title Language
Inadvisable
Acceptable
Maid………………………………………..
Housekeeper
Maintenance Man…………………………
Maintenance Worker
Policeman………………………………… Police Officer
Repairman…………………………………Repairer, Technician
Salesman, Saleswoman………………… Sales Representative, Sales
Clerk, Sales Consultant
Stewardess, Steward……………………. Flight Attendant, Cabin
Attendant
Waiter, Waitress…………………………..Server

Other Non-Discriminatory Options: Sex specific titles such as
Guardsman, Horseman, Midwife, etc. may be used if accompanied
by the designation “man or woman” or “male or female”.

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Job Advertisement Language
Inadvisable
Acceptable
Man, woman, girl, boy, lady…………….. Person, applicant, candidate,
trainee, incumbent, staff, employee
Married, Single…………………………… No acceptable substitute
Cute, handsome, pretty,
clean cut, attractive……..........................Professional appearance, Employer
has dress code
Non-smokers only…………………………Non-smoking environment
No criminal record,…………………………Employer does background check
No felonies
Recent graduate, college student……….
College degree required,
Internship
Mother, housewife……………………….. Part time, short hours
Young, energetic…………………………. Entry level, trainee, intern
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Job Advertisement Language
Inadvisable
Acceptable

Black, White, Minority
Colored, Oriental, Asian, Mexican…………….Applicant, candidate, incumbent
Must own a car………………………………….Must be able to arrive at work on time
Must be male, physically fit……………………Able to lift 50 lbs.
Handicapped, crippled, retarded…………….. Person/People/Individual with
disabilities, accessible
entrance/bathroom, etc.
Must have # years experience………………...Successful, wide ranging,
considerable experience
Junior…………………………………………… Entry level
Senior…………………………………………… Mature attitude, approach,
or understanding
No unemployed candidates considered…….. Not acceptable
Additional Acceptable Terms: Reliable, responsible, efficient, minimum wages,
long hours, overtime, able to travel, willing to relocate, wide-ranging, considerable
experience.

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Age Inquiries
Inadvisable Language
 “Energetic” “High School” “Young, strong, dynamic”
 “Youthful appearance”
 “Persons over 50, 60, 70, etc. need not apply”
 “Family Oriented”
 “Maximum experience requirement of X number of
years”
 “Expected experience range of X to X number of
years”

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Age Inquiries
Chris, a 65 year old man, saw a newspaper ad
for a cashier at Groceries R Us. The
advertisement states:
“Applicant must be young and energetic and
possess excellent customer relations skills.
Applicants who are selected would be
required to stand for long periods of time and
lift 20-30 pounds.”

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Age Inquiries
Chris contacted the EEOC who determined the ad to
be discriminatory. By using the word “young” the
ad indicates a specific preference based on age
which would deter many qualified older persons
from applying.
 Deleting the word “young” would probably make
the ad acceptable as persons of all ages can be
energetic and possess excellent customer service
skills.
 The requirements to stand for long periods and to lift
20-30 pounds are not age related and appear to be
consistent with business necessity.

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Sex/Gender Inquiries
Inadvisable Language

“Only men/women wanted”
“Seeking waitress” (should say server, wait
staff, etc.)
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Job Advertisements must not express a sex
preference unless sex is a bona fide
occupational qualification for the job.

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Language/National Origin Inquiries
Inadvisable Inquiries
“English speaking applicants only”
“Is English your first language?”
 Requiring the ability to read, write, or speak
English, unless it substantially relates to job
duties, can be discriminatory.
 The language level sought should not exceed
the level needed to perform the job. The EEOC
presumes that English-only policies that apply
at all times violate Title VII of the Civil Rights

Act.
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English-Only Policies
An English-only rule may be used if necessary to
promote safe and efficient business operation
such as in the following situations:
 Communications with customers, co-workers, or
supervisors who speak only English.
 Emergency situations and cooperative work
assignments which require a common language
to promote safety and efficiency.
 English only policies should apply only to
specific workplace situations. Employees
should generally be allowed to speak other
languages during breaks, meals, etc.
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Health/Disability Inquiries
Inadvisable Language
“Must not have a disability”
“Must not be predisposed to a disease or illness”
“Have you undergone a psychiatric evaluation?”
“Do you have any disabilities?”
“How much alcohol do you drink each week?”
“Have you ever filed for workers compensation?”
 Employers may not ask applicants if they have a
disability or require them to take a medical exam

prior to extending a job offer.
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Health/Disability Inquiries
Employers may ask the following questions to
determine whether an applicant can perform
specific job functions. These questions should be
asked of every applicant.
 Can you meet the essential functions of this job
with or without reasonable accommodation?
 Describe how you would perform this job with or
without reasonable accommodation.
 Can you meet the attendance requirements of this
job?
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Discriminating Against the Unemployed
Inadvisable Language

“Must be currently employed”
“Only currently employed candidates will be
considered”
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Using current employment as a selection
criteria could adversely impact women,
minorities, and individuals with disabilities.

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Arrest Record Inquiries
Inadvisable Language

“Have you ever been arrested?”
“How many times have you been arrested?”
“Must have no arrest record”
 There is no law that prohibits employers from
inquiring about arrest and conviction records.
However, the EEOC has determined that
using such records as an absolute bar to
employment has an adverse impact on
some racial and ethnic groups.
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