6. Drug use. Asking about drug use or addictions isn't illegal, but it's tricky if you were asked about drugs and then denied the job, Ballman says. "If the employer denies employment because of an addiction or history of addiction, then they may be engaging in disability discrimination," she explains. While it's forbidden to deny employment based on past drug use or addictions, it is legal to deny employment for current illegal drug use. However, employers can request drug tests before hiring an applicant, and state laws dictate procedures employers must follow.
7. Conviction records, arrest records and background checks. There are no federal laws that prohibit an employer from asking about arrest and conviction records, but some states have laws that ban these questions. According to the EEOC, if the employer believes the applicant engaged in the conduct for which he or she was arrested/convicted, that information could prevent him or her from employment only if it's evident the applicant cannot be trusted to perform the duties of the position, considering the nature of the job, seriousness of the offense and length of time since the offense occurred.
8. Current economic status. Some states have banned employers from asking questions about credit history and/or pre-employment credit checks, Ballman says. Additionally, employers may not subject ethnicity or religious groups to heightened background or security checks. The use of credit ratings and economic status also should be avoided since they tend to impact minorities and females more adversely. Consult your state's labor department for the processes employers must adhere to for background and/or security checks.
Advice to Applicants
According to Ballman, you should prepare to hear interview questions that seek to reveal information about a protected class, and you shouldn't overreact if you do. Make a note of the question, your answer and any unusual reactions in case you need it in the future. It can possibly result in a discrimination lawsuit if the question was asked and an applicant who was less qualified than you received the job, she says. According to Assaf, you should be careful about what you disclose in an interview, and "there is nothing wrong with refusing a question."
Advice to Interviewers
Interviewers should only ask questions that pertain to the needs of the job. According to the EEOC, it is assumed that pre-employment requests for information will form the basis for hiring decisions. Therefore, employers shouldn't ask for protected class information unless they have a legitimate business need. "Make sure you focus on the ability to do the job," Goldberg says. "Feel free to explain the requirements, demands and the realities of an applicant being able to meet or not meet expectations."