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EMPLOYMENT LAW GUIDE: - page 45 / 134





45 / 134


Improper Inquiries

It is unlawful for an employer to inquire about certain areas during the application

process. Generally, any inquiries that directly or indirectly elicit information about an

applicant’s protected status is inappropriate. An area that is frequently difficult for

employers are inquiries that relate to disabilities. Employers may not ask disability questions

during the pre-employment process, whether on a job application form, in a job interview, or

in the employer’s background or reference checks. The purpose of this restriction is to

isolate consideration of an applicant’s job qualifications from any consideration of her

medical or disability-related condition. Questions about any of the following subjects are off

limits during the pre-employment part of the hiring process because they are likely to elicit

information related to a handicap or disability:

  • treatment for medical conditions or diseases;

  • hospitalizations;

  • treatment by a psychologist or a psychiatrist for a mental condition;

  • major illnesses;

  • absences from work due to illness; and

  • physical conditions.

Questions about an applicant’s workers’ compensation or health insurance history are also

prohibited because they are often related to an individual’s impairment and are likely to elicit

information about a disability. It is discriminatory for an employer to reject an applicant

because of a fear that she may increase workers’ compensation or health insurance costs. An

employer cannot ask how often an applicant was absent from a former job due to illness.

Similarly, it is inappropriate to ask applicants about religious practices, plans to marry

or have children, pregnancy, race or national origin, or any other protected status. An

employer may not ask an applicant certain questions related to criminal history. See Part I,


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