Before proceeding, we should review what federal fair employment laws allow (and do not allow) you to say and do.
Federal laws like title VII usually don’t expressly ban pre-employment questions about an applicant’s race, color, religion, sex, or national origin. In other words, with the exception of personnel policies calling for outright discrimination against the members of some protected group, it’s not the illegal to ask a job candidate about her marital status (although at first glance such a question might seem discriminatory). You can ask, as long as you are prepared to show either that you do not discriminate or that you can defend the practice as a BFOQ or business necessity.
But, in practice, there are two reasons to avoid such questions. First, although federal law may not bar such questions, many state and local laws do. Second, the EEOC has said that it will disapprove of such practices, so just asking the questions may draw its attention. Put another way, these are often problem questions because they tend to identify an applicant as a member of a protected group or to adversely affect members of a protected group. They become illegal if a complainant can show they are used to screen out a greater proportion of his or her protected group’s applicants, and the employer can’t prove the practice is required as a business necessity or BFOQ.
Then EEOC approves using testers – individuals who pose as applicants to test a firm’s equal employment procedures. This makes it even more important to be careful in devising selection procedures and training recruiters.
Let’s look now at some of the potentially discriminatory practices to avoid.
You cannot rely upon mouth dissemination of information about job opportunities when you work force is all (or substantially all) white all members of some other class such as all female, all Hispanic and so on. Doing so reduces the likelihood that others will become aware of the jobs and thus apply for them.
Misleading Information: It is unlawful to give false or misleading information to members of any group or to fail or refuse to advise them of work opportunities and the procedures for obtaining them.
Help wanted Ads: Help wanted – male and help wanted–female advertising classifications are violations unless gender is a bona fide occupational qualification for the job. The same applies to ads that suggest you discriminate based on age. For example, you cannot advertise for a young manor woman.
Educational Requirements: Courts have found educational qualifications to be illegal when (1) minority groups are less likely to possess the educational qualifications (such as a high school degree) and (2) such qualifications are also not job related. There may be jobs for which educational requirements (such as college degrees for pilot candidates) are a necessity, however.
Tests: Courts deem tests unlawful if they disproportionately screen out minorities or women and are not job related. According to former Chief Justice Burger, Nothing in the [Title VII] act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanism controlling force unless they are demonstrating a reasonable measure of job performance.
Preference to Relatives: do not give preference to relatives of current employees with respect to employment opportunities if your current employees are substantially non-minority.
Height Weight and physical Characteristics: Requirements for physical characteristics (such as height and weight) are unlawful unless the employer can show they’re job related. For example, the Court held that a firm’s requirement that a person weigh minimum of 150 pounds for positions on its assembly lines discriminated unfairly against women. Maximum weight rules generally don’t rigger adverse legal rulings.