EEOC Statements on Pre-Employment
Inquiries
“Although Title VII does not make pre-employment inquiries concerning
race, color, religion or national origin per se violations of the law, the
Commission’s responsibility to equal employment opportunity compels it to
regard such inquiries with extreme disfavor.”
“ … in the investigation of charges alleging the commission of unlawful
employment practices, the Commission will pay particular attention to
the use by the party against whom charges have been made of preemployment inquiries concerning race, religion, color, or national origin,
or other inquiries which tend directly or indirectly to disclose such
information. The fact that such questions are asked may, unless
otherwise explained, constitute evidence of discrimination, and will
weigh significantly in the Commission’s decision as to whether or not
Title VII has been violated”
Previous research studies examining employment applications
by date of study
Study
Results
Type of Application & Sample
Wallace &
Vodanovich (2002)
Fortune 500 sample = 2.99
inappropriate items
Customer Service sample = 5.35
inappropriate items
191 Fortune 500 Finance/Accounting
applications
109 Customer service applications
(e.g., retail, food service)
Wallace, Tye, &
Vodanovich (2000)
Average of 4.2 inappropriate
items with most problematic:
salary, age, driver’s license
42 online state general employment
applications
Vodanovich & Lowe
(1992)
Average of 7.4 inappropriate
items with most problematic: age,
convictions, & salary
Retail; 46 categories
Jolly & Frierson
(1989)
25% of 20 categories were
problematic (e.g., salary)
283 random applications from
American Society of Public
Administration members; 20
categories
Coady,
(1986)
Most problematic: improper use
of EEO worksheets
50 state libraries; 25 categories
Lowell & DeLoach,
(1982)
Most problematic: military
service & age
50 US firms; 17 categories
Burrington,
(1982)
Average of 7.7 inappropriate
items
50 general state applications; 30
categories
Miller,
(1980)
Average of 9.74 inappropriate
items
151 of Fortune 500; 72 categories
Note: Adapted from Wallace, Tye, and Vodanovich, 2000.
Percentage of most commonly identified inadvisable application blank items by sample
[from Wallace & Vodanovich (in press) Public Personnel Management]
Customer Service
Category
Fortune 500
Inadvisabl
e
Legitimat
e
Inadvisabl
e
Legitimat
e
Desired Salary
66.1
15.0
20.8
5.2
Personal E-Mail Address *
49.5
0.0
88.0
2.5
Lowest Acceptable Salary
46.8
19.2
25.0
1.2
Graduation Date
33.9
3.1
54.2
3.5
Work Schedule
33.0
36.2
1.6
0.6
Conviction (w/o disclaimer)
26.6
56.8
3.6
38.2
References
26.6
42.4
3.1
23.6
Gender (w/o EEO disclaimer)
25.7
38.0
20.3
19.5
Race (w/o EEO Disclaimer)
24.8
25.1
15.1
18.9
Driver’s License
22.9
16.2
1.6
0.8
Relatives
21.1
5.1
2.6
0.0
EEO Worksheet
16.5
8.1
14.1
25.6
Handicap (w/o EEO disclaimer)
14.7
3.2
3.6
15.6
Age (w/o EEO disclaimer)
14.7
3.2
3.1
15.8
Language Fluency
11.9
1.5
3.1
0.7
Emergency Contact
7.3
0.0
.5
0.0
Marital Status
3.7
0.8
5.7
0.3
Personal Web Page Address
3.7
0.0
16.7
0.0
National Origin (w/o EEO disclaimer)
2.8
1.8
5.7
23.1
Height and Weight
• EEOC and the courts have ruled minimum
height and weight requirements to be illegal if
they screen out a disproportionate number of
minority group individuals (e.g. Spanish
surnamed or Asian Americans) or women, and
the employer cannot show that these standards
are essential to the safe performance of the job
in question
Marital Status, Number of Children
and Provision for Child Care
• Questions about these things may be a violation of Title
VII if they are used to deny or limit opportunities for
female applicants
• It is a title VII violation for employers to inquire about
child care arrangements to only their female applicants
• Supreme Court ruled that it is unlawful for employers to
have different hiring practices for men and women with
school-aged children
• Unacceptable Question: Do you plan on having any
children?
• Information needed for tax, insurance or social security
can be obtained after employment
English Language Skill
• A violation of Title VII results when:
• The use of an English language proficiency test
has an adverse impact upon a particular
minority group and
• English language skill is not a requirement of
the work to be performed
Educational Requirements
• Requirement of high school diploma discriminatory when:
• It operates to disqualify groups protected under Title VII at
a higher rate than other groups (e.g., Griggs case)
• There is no evidence that the requirement is significantly
related to job performance or business necessity
• Unacceptable question: What year did you graduate from
high school?
• Acceptable question: What schools (high school,
undergraduate, graduate) did you attend?
Friends or Relatives Working for
the Employer
• Information regarding these things is not relevant to
applicant’s competence
• Unlawful if it indicates that employers are giving
preference to applicants who have friends or relatives of
the current employees
• Unlawful if the preference would reduce or limit
opportunities for women or minority group members
• Nepotism policies which prohibit or limit opportunities for
one’s spouse or relative may be illegal if it has an adverse
impact on employment opportunities for man or women
as a group
• Unacceptable question: Do you have any relatives working
for this company?
• Acceptable question: If a minor, what is the name of your
parent or guardian?
Arrest Records
• Making employment decisions on the basis of
arrest records involving no subsequent
convictions has a disproportionate effect on
some minority groups because they are
arrested more than whites
• Unlawful without proof of business necessity
• Merely requesting arrest records discourages
minority applicants from applying and is illegal
• Unacceptable question: Have you ever been
arrested?
Conviction Records
• Convictions don’t constitute automatic rejection
and an employer may give fair consideration to
the relationship between the applicant’s conviction
and their ability to perform the job in question
• Cause for rejection if number and nature make
applicant unsuitable for the job
• A statement should accompany inquiries stating
that convictions aren’t automatic bar to
employment
• Factors such as age, time of offense, seriousness
of violation and rehabilitation considered
• Acceptable question: Have you ever been
convicted of any crime? If so, please explain.
Discharge from Military Service
• Making honorable discharge from the military an
employment requirement has a disparate effect upon
minorities and may be a violation of Title VII
• Employers should avoid inquiries about from military
unless they can show business necessity
• One federal district court has held that an employer may
inquire about an applicant’s military service record if it is
not used in hiring, but used to decide whether further
investigation is needed
• If inquiry is made then employer should provide a
statement that dishonorable discharge is not an
absolute bar to employment
• Unacceptable question: What type of discharge did you
receive from the U.S. Navy?
• Acceptable question: What were your duties in the U.S.
army?
Age
• ADEA prohibits discrimination based on age with
respect to individuals who 40 years old or older
• Employment applications that use this information
are closely scrutinized to ensure that they are not
in violation of ADEA
• Permissible when age requirement is BFOQ or
based reasonable factors other than age
Citizenship
• Consideration of an applicant’s citizenship may
constitute evidence of discrimination on the basis of
national origin
• Lawfully immigrated aliens with legal eligibility to work
may not be discriminated against on the basis of
citizenship except in the interest of national security
• If states have enacted laws prohibiting non-citizens their
laws are superceded by Section 708 of Title VII
• Unacceptable question: That’s a nice accent, where
were you born?
• Acceptable question: Are you a citizen of the U.S.? If
not, do you have a work permit?
Economic Status
• Rejection of minority applicants because of poor credit
rating has a disparate impact on minority groups and has
been found unlawful unless business necessity can be
shown
• Inquiries about an applicant’s financial status, such as
bankruptcy, car ownership, rental, or ownership of a
house, length of residence at an address, or past
garnishment of wages, may violate Title VII if used to
make employment decisions
• Unacceptable question: Please list your credit
references.
• Acceptable question: May I contact your previous
employer?
Availability for work on weekends
or holidays
• Employers have obligation to accommodate employees’
religious beliefs unless it poses undue hardship
• Such inquiries have an exclusionary effect on persons
practicing certain religious beliefs and
• shouldn’t be asked unless the employer can show that
the questions have not had an exclusionary effect on its
employees who need accommodations for their religious
beliefs, that the questions are otherwise justified, and
that there are no alternative procedures which would
have a lesser exclusionary effect
• Unacceptable question: Would you be absent for any
religious holidays?
• Ask later; make reasonable accomodations
Data required for legitimate
business purposes
• Data on marital status, number and age of children, and other similar
issues which could be used in a discriminatory manner but which are
necessary for insurance should be obtained after employment
• Tear-off sheets with the above information are permitted but only for
purposes unrelated to selection
• In an investigation of discrimination, the burden of proof is on
employer to show that answers to questions on application forms or in
oral interviews are not used in hiring decisions in a discriminatory
manner
• It is in employer’s own self-interest to carefully review all procedures
used in screening applicants, eliminating or altering any not justified by
business necessity
• Unacceptable question: To what clubs or organizations do you
belong?
• Acceptable question: What organizations do you belong, excluding
those that indicate religion, national origin etc.
Frequency of Common Inappropriate Application Blank Questions
Item
Not appropriate
Worded Appropriate
Not asked
Past salary
98.9
0
1.1
Minimum salary
72.7
0
27.2
Reference source
59.1
0
40.9
Age
54.5
37.5
8.0
Information about
relatives
50.0
10.2
39.8
Conviction records
43.2
28.4
28.4
Health
40.9
2.3
56.8
Military service
30.7
30.7
38.6
Marital status
27.3
0
72.7
Emergency contact
25.0
43.2
31.8
Time in residence
23.9
0
76.1
Physical desc., photo
19.3
0
80.7
Rent or own
18.2
0
81.8
Handicap
17.0
6.8
76.2
Organizations
15.9
21.6
12.5
Work schedule
13.6
63.6
22.7