The Age Discrimination in Employment Act (29 U.S.C. 621-34)
prohibits discrimination on the basis of age against individuals
who are between the ages of 40 and 70 inclusive. A majority of
states also have laws prohibiting age discrimination.
Consideration of arrest records is almost certainly unlawful.
An arrest is no indication whatsoever of guilt, and historically
minorities have suffered proportionately more arrests than
others. The U.S. Department of Labor has also recognized the
potential for discrimination in the consideration of arrest
The commission has adopted Guidelines on Discrimination
Because of National Origin which contain the following statement:
"Because discrimination on the basis of citizenship has the
effect of discriminating on the basis of national origin, a
lawfully immigrated alien who is domiciled or residing in this
country may not be discriminated against on the basis of his
citizenship; except pursuant to national security requirements by
a federal statute or executive order." At least one federal
court has expressly agreed with this analysis (Guzman v.
Polich & Benedict Contruction Co., 2(CCH) EPD par. 10,
156 (C.D.Calif. 1970), and one had disagreed Espinoza v. Farah
Mgf. Co., (CCH) EPD par. 7835 (5th Cir. 1972). State and
federal courts have recently declared invalid laws in several
states which exclude non-citizens from public employment.
To the extent that this question implies an absolute bar to
the employment of an applicant who has a conviction record, it is
probably unlawful. See Carter v. Gallagher, 451 F. 2nd 315
(8th Cir. 1971). This is because some minority groups in our
society have conviction records substantially in excess of the
average, taking into consideration their relative numbers and the
extent of their "criminal" activity. On the other hand,
an employer probably has the right to exclude persons who have
been convicted of certain offenses from consideration for certain
kinds of jobs, at least if this is done on a carefully considered
basis. To avoid frightening off qualified applicants who have
irrelevant criminal records, the best practice would be to obtain
conviction information through local police departments rather
than from applicants. If this is not possible, the application
may indicate that the existence of a criminal record does not
constitute an automatic bar to employment. In addition, each
person who will evaluate information concerning criminal records
should be given careful instructions as to its limited
Because minority persons are far poorer on the average than
whites, consideration of these factors has an adverse effect on
minorities and is probably unlawful unless required by
considerations of business necessity. See EEOC Decision 72-9427
(1971), CCH Employment Practices Guide par. 6312. The U.S.
Department of Labor has also recognized credit records.
This question may reflect preference for friends or relatives
of present employees. Such a preference would be unlawful if it
has the effect of reducing employment opportunities for women or
minorities. It would have this unlawful effect if the present
work force differs significantly in its proportion of women or
minorities from the population area which workers are recruited.
This question may also reflect a rule that only one partner in a
marriage can work for the employer. There is a growing
recognition that such a rule hurts women far more often than men
and that the rule serves no necessary business purpose.
Section 504 of the Rehabilitation Act of 1973, as amended,
prohibits discrimination in employment on the basis of handicap
except that a handicapped person must be
"qualified"--viz., a qualified handicapped person in
the employment context is "a handicapped person who, with reasonable
accommodation, can perform the essential functions of the job
in question." The employer need not hire any individual who,
after reasonable accomodation, is not able to perform the
essential functions of a job effectively and safely. On July 26,
1990, President Bush signed the Americans with Disabilities Act
(ADA) into law. The ADA prohibits discrimination against
individuals with disabilities. All employers with 25 or more
employees were covered as of July 26, 1992. The ADA prohibits
covered employers from discriminating against qualified disabled
individuals in any aspect of employment, including hiring,
promotion, dismissal, compensation, training, or any other term,
condition or privilege of employment. Specific prohibitions
include limiting, segrregating, or classifying job applicants or
employees in ways that adversely affect the opportunities or
status of such individuals because of disability; using standards
or criteria that have the effect of discriminating against the
disabled; denying job benefits or opportunities to someone
because of association or relationship with a disabled
individual; not making reasonable accomodations; using employment
tests or selection criteria that screen out the disabled and are
not job-related; and failing to use tests that accurately measure
job abilities rather than the impairment of a disabled
Some employers have imposed minimum height and weight
requirements for employees which are not related to the job to be
performed and which have the effect of excluding above-average
percentages of women and members of certain nationality groups.
Unless height or weight is directly related to job requirement,
these questions should not be asked.
Women generally have been relegated to poorer paying jobs than
men, and have been paid less than men for the same work. As a
result of this discrimination, a woman might be willing to work
for less pay than a man would find acceptable. It is unlawful,
however, to pay a woman less than a man because of community wage
patterns which are based on discrimination. See Hodgson v. City
Stores, Inc., 332 F. Supp. 942 (M.D. Ala., 1971).
This is not relevant to a person's ability to perform a job
and could be used for discriminatory purposes. For example, a
woman's maiden name may be used as an indication of her religion
or national origin. This item also constitutes an inquiry into
marital status which is discussed separately.
Some employers have refused to hire a married woman for
certain jobs. Most airlines, for example, refused for many years
to permit a married woman to be a flight attendant, though other
employees could be married. This practice was held to violate
Title VII of the Civil Rights Act of 1964 in Sprogis v. United
Airlines, 444 F. 2nd 1194 (7th Cir. 1971), and par. 1604.4 (a) of
the Comission's Guidelines on Discrimination Because of Sex.
Finally, an employer could not refuse to hire a married worman
for any job or for particular jobs because of the employer's
beliefs concerning morality or family responsibility.
This question may serve to discourage applications from
persons of certain religions which prohibit their adherents from
working on Saturday or Sunday. On the other hand, it may be
necessary to know whether an applicant can work on these days.
Section 701 (j) of Title Vii, as amended in 1972, prohibits
discrimination on the basis of religion and defines religion to
include "all aspects of religions observance and practice,
as well as belief, unless an employer demonstrated that it is
unable to reasonably accommodate an employee's or prospective
employee's religious observance or practice without hardship on
the conduct of the employer's business." If this kind of
question is asked, it would be desireable to indicate that a
resonable effort will be made to accommodate the religous needs
Title VII prohibits discrimination in employment on the basis of sex except in the few instances in which sex may be a B.F.O.Q. reasonably necessary to the normal operation of the employer's business. There are virtually no jobs that can be performed by only one sex or the other.
Most of this information was reprinted from U.S. Equal Employment Opportunity Commission Guidelines for Title VII of the Civil Rights Act of 1964. Adapted with permission from Richard D. Howe, Director, Office of Equal Opportunity Programs, Appalachian State University, Boone, North Caronlina.
Last updated 98/06/05
Edited and updated, J.A.N. Lee, 99/01/29
Edited and updated, Ryan Richardson, 99/02/13