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One of the purposes of the fair employment law is to encourage employers to evaluate job applicants on the basis of their qualifications rather than on a particular class to which they may belong. Under section 111.322(2) of the Wisconsin Statutes it is unlawful to print or calculate any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation or discrimination based upon a person’s race, color, creed, ancestry, national origin, age, sex, disability, arrest or conviction record, marital status, sexual orientation, military service or use or nonuse of lawful products away from work.
For example, an employer might ask an applicant “what nationality are you”? This question “implies” that an applicant’s national origin will be a factor in whether or not they get the job. Even if the employer does not intend to discriminate, asking the question may be unlawful.
This pamphlet deals primarily with avoiding “loaded” questions, but employers should also review their recruitment, hiring and promotion processes to ensure they are fair.
Job Service has trained job counselors who can assist in matching employer’s and qualified applicants. To locate the Job Center in your area, call 1-888-258-9966.
The key to understanding unlawful inquiries is to ask only questions that will provide information about the person’s ability to do the job, with or without a reasonable accommodation. Also note that inquiries which are unlawful to ask a candidate directly may not be asked as part of a pre-offer reference check.
Age based inquiries should be avoided because state law prohibits discrimination against persons age 40 and older. An age inquiry may be made to ensure a person is “old enough” to work for the job being filled or if the job is among the few where age discrimination is permitted such as physically dangerous or hazardous work or driving a school bus.
Wisconsin law prohibits inquiries about past arrest records but permits consideration of a current arrest. If an applicant is under arrest for an offense that is substantially related to the job, an employer may suspend judgment until the case is resolved, advise the applicant to reapply when the charge is resolved or refuse to employ the applicant. A current employee who is arrested may be suspended if the charge is substantially related to the job.
An employer may not refuse to employ or discharge a person with a conviction record unless the circumstances of the conviction substantially relate to the circumstances of the job. If an inquiry about convictions is made, the employer should add a clarifier, “A conviction will not necessarily disqualify you from employment. It will be considered only as it may relate to the job you are seeking”. Anyone who evaluates conviction record information should be knowledgeable about how such data may be used.
This question may discourage an applicant whose religion prohibits Saturday or Sunday work. If a question about weekend work is asked, the employer should indicate that a reasonable effort is made to accommodate religious beliefs or practices. An employer is not required to make an accommodation if doing so would create an undue hardship on the business.
The purpose of these “child” inquiries is to explore what some employers believe is a common source of absenteeism and tardiness. Typically, these questions are asked only of women making the inquiry clearly unlawful. However, even if such inquiries are made of both men and women, the questions may still be suspect. Such information has been used to discriminate against women because of society’s general presumption that they are the primary care givers. If the employer’s concern is regular work attendance, a better questions would be, “Is there anything that would interfere with regular attendance at work?”
Inquiries about a person’s citizenship or country of birth are unlawful and imply discrimination on the basis of national origin. A lawfully immigrated alien may not be discriminated against on the basis of citizenship. The Immigration Reform and Control Act of 1986 requires employers to verify the legal status and right to work of all new hires. Employers should not ask applicants to state their national origin, but should ask if they have a legal right to work in America, and explain that verification of that right must be submitted after the decision to hire has been made. To satisfy verification requirements, employers should ask all new hires for documents establishing both identity and work authorization. For more details on these regulations, contact the Immigration and Naturalization Service at (800) 375-5283.
Answers to these inquiries are almost always irrelevant to job performance. Because census data indicates minorities, on average, are poorer than whites, consideration of these factors may have a disparate impact on minorities. Therefore, requests of this nature may be unlawful unless clearly required by business necessity.
Inquiries about a person’s disability, health or worker’s compensation histories are unlawful if they imply or express a limitation based on disability. Under the federal Americans with Disabilities Act, any inquiry at the pre-employment stage, which would likely require an applicant to disclose a disability, is unlawful. Employers must avoid such inquiries or medical examinations before making a bona fide job offer.
However, an employer may inquire about an applicant’s ability to perform certain job functions and, within certain limits, may conduct tests of all applicants to determine if they can perform essential job functions, with or without an accommodation.
While employers may inquire about a person’s education, only clearly job related education should be considered in making the hiring decision. Educational requirements that are not necessary for performance of the job may be unlawful if they adversely impact protected group members. Rather, find a reliable way to determine if applicants have the skills necessary to function successfully in the job.
This question is not relevant to an applicant’s competence and should be avoided. Since the question implies a preference for friends or relatives, it may be unlawful if the composition of the present work force is such that this preference reduces or eliminates employment opportunity for minorities or women. This question may also reflect a rule that only one partner in a marriage can work for the employer. This tends to have a disproportionate impact on women.
Minimum height and weight requirements are unlawful if they screen out a disproportionate number of women or minorities. Unless the employer can show that a height or weight requirement is essential for job performance, such inquiries should be avoided.
An applicant may not be required to take a polygraph test and must be informed in writing and orally that the test is voluntary. Hiring decisions may not be based on polygraph test results, without the employer considering other relevant information obtained independently. Employers may use only one permitted type of mechanical device that visually, permanently and simultaneously records the person’s cardiovascular and respiratory pattern and change. Questions must relate to a person’s work performance. Display of polygraph protection posters may be required.
Some level of English skill may be necessary for many jobs. But, it is also clear that fluency or absence of an accent is not relevant for a substantial number of jobs. Employers must be careful about requiring English language proficiency and ensure the skill level being sought does not exceed the level required for successful job performance.
Women generally hold poorer paying jobs than men and are paid less for the same work. As a result of these practices, a woman might be willing to work for less pay than a man might find acceptable. It is unlawful to pay a woman less than a man for performing the same or substantially similar work.
None of these inquiries are relevant to job performance and could be used to discriminate. A woman’s maiden name or spouse’s name may indicate religion or national origin. Having a person check a box for Mr., Mrs. or Miss may be an impermissible inquiry with regard to gender or marital status. An employer may not discriminate against a person because of their status of being married, single, divorced, separated or widowed.
It is unlawful to discriminate against someone because of Military Service. “Military service” means service in the U.S. armed forces, the state defense force, the national guard of any state, or any other reserve component of the U.S. armed forces.
Questions relevant to experience or training received in the military or to determine eligibility for any veteran’s preference required by law are acceptable.
A person may not be discriminated against for using or not using “lawful products” off the employer’s premises during nonworking hours. The law contains some exceptions, but employers generally should avoid inquiries in this area.
It is reasonable to assume that all questions on an application form or in an interview are for a specific purpose and that decisions are made on the basis of the answers given. In deciding if a question is unlawful, the employer should determine why the information sought is necessary. For example, why is it important to know a person’s age, or their ability to speak Spanish? If the answer does not provide job-related information to determine a person’s qualifications, it is a strong indication the question should not be asked. Questions that do not produce information that helps the employer choose the most qualified applicant tend to raise questions as to the employer’s motive for asking.
This is one of a series of pamphlets highlighting programs in the Equal Rights Division within the Wisconsin Department of Workforce Development.
This pamphlet is intended to provide only general information and it is not intended to be a legal document or to be considered legal advice.
#1 Avoiding Loaded Interview Questions
#2 Harassment in the Workplace
#3 Pregnancy, Employment & The Law
#4 Persons With Disabilities On The Job
#5 Fair Employment Law & Complaint Process
#6 Age Discrimination in the Workplace
#7 Settlement: An alternative to investigation and hearing
#8 Race, Color, National Origin and Ancestry
#9 Sexual Orientation Protection
Questions about employment discrimination may be directed to the:
STATE OF WISCONSIN
DEPARTMENT OF WORKFORCE DEVELOPMENT
EQUAL RIGHTS DIVISION
CIVIL RIGHTS BUREAU
201 E WASHINGTON AVE
PO BOX 8928
MADISON WI 53708
Telephone Number: (608) 266-6860
TTY Number: (608) 264-8752
819 N 6th ST
MILWAUKEE WI 53203
Telephone Number: (414) 227-4384
TTY Number: (414) 227-4081
Offices are open 7:45 a.m. to 4:30 p.m. Monday through Friday
The Department of Workforce Development is an equal opportunity service provider. If you need assistance to access services or need material in an alternate format, please contact us.