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Questions You May/May Not Ask

The New York State Human Rights Law prohibits discrimination in employment because of the race, creed, color, national origin, sex, disability, genetic predisposition (at risk of having a disease or disability) or carrier status (at risk of having children with a disease or disability), marital status or arrest record of a candidate. Further, except for certain positions involving health or safety, or where the individual's presence on the job is essential, the Human Rights Law prohibits employers from disqualifying a candidate because of his or her religious observance requirements. The Human Rights Law also makes it unlawful to deny a candidate employment because he or she has been convicted of one or more criminal offenses or because he or she lacks "good moral character," when such denial is in violation of Article 23-a of the Correction Law.

Additionally, New York State agencies are prohibited by Executive Order from discriminating on the basis of sexual orientation.

During the job interview, it is unlawful to ask questions that directly or indirectly seek to provide information about certain factors. The Human Rights Law prohibits employers from asking a candidate questions, directly or indirectly, about a candidate's age, race, creed, color, national origin, sex, disability, genetic predisposition or carrier status, marital status or arrest record, unless based upon a bona fide occupational qualification.

The following are examples of questions that you can and cannot ask:

Name

Not Permissible

• To inquire as to a candidate's preferred title, such as Miss, Ms. or Mrs.
• To ask the prior name(s) of a candidate whose name has been changed by court order or otherwise.
• To ask the maiden name of a married woman.

Permissible

• Questions about a change of name, use of an assumed name or nickname, in order to verify the qualifications stated by the candidate.

Address/Residency

Not Permissible

• To inquire about a foreign address, which may indicate national origin.
• To ask the names of and the candidate's relationship to the person(s) with whom he or she resides.

Permissible

• To inquire as to the candidate's place of residence, and how long he or she has been a resident of New York State or a particular city.

Citizenship

Not Permissible

• Questions about the candidate's country of citizenship or the country from which the candidate's parents came.
• To inquire as to whether the candidate is naturalized or was born in the United States and/or when the candidate acquired citizenship.

Permissible

• To ask the candidate if he or she is legally eligible to work in the United States.
• To ask the candidate if he or she is a citizen where citizenship is a qualification for the position sought (e.g. probation officers, peace officers).

Note: The EEOC Guidelines on Discrimination because of National Origin indicate that consideration of an applicant's citizenship may constitute evidence of discrimination on the basis of national origin. The EEOC provides that, where consideration of citizenship has the purpose or effect of discriminating against persons of a particular nationality, a person who is a lawfully immigrated alien, legally eligible to work, may not be discriminated against on the basis of his or her citizenship.

Age

Not Permissible

• For other than a minor, to ask the candidate his or her age, or to require proof of age or date of birth. If the candidate is 18 years of age or older, age cannot be a consideration in the decision to hire the candidate unless age is a bona fide occupational qualification for the position, or a maximum or minimum age is provided for in federal, State or local law.

Permissible

• To ask whether the candidate is 18 years of age or older and, if the candidate is not, to require proof of age in the form of a work permit or certificate of age.

Family/Relatives

Not Permissible

• To inquire as to the marital status, pregnancy, future child bearing plans, ability to reproduce, advocacy of any form of birth control or family planning, and number and age of children. (Information needed for health insurance and other purposes may be obtained if and when candidate is employed.) Title VII of the Civil Rights Act of 1964, as amended, makes it unlawful to ask candidates about child care arrangements.
• To inquire as to the number, names, addresses and ages of applicant's spouse, children or relatives.

Permissible

• To ask if any family members are employed by the agency.

Marital Status

Not Permissible

• It is not permissable to inquire whether a candidate is single, engaged, married or divorced.

Sexual Orientation

Not Permissible

• It is not permissible to make any inquiries regarding sexual orientation.

Mobility/Travel/Ability to Get to Work

• Inquiries as to a candidate's mobility or ability to travel should only be asked if they are essential to successful job performance. Such inquiries may tend to discriminate against older workers, people with disabilities and women. If the job requires travel or the ability to work at different locations, you may state the job requirements and ask the candidate if he or she is able to meet such requirements.

Religion

Not Permissible

• To inquire into a candidate's religious denomination or affiliations, parish or church, or whether they observe certain religious holidays.

Permissible

• To state the requirements of the job in terms of work schedule, such as the days of the week, workday and overtime, and ask the candidate whether he or she is able to meet such requirements. The EEOC cautions against asking questions regarding a candidate's availability to work on Friday evenings, Saturdays or holidays.

Note: Title VII of the Civil Rights Act of 1964, as amended, and the Human Rights Law require employers and unions to accommodate the religious beliefs of employees and applicants, unless the accommodation would create an undue hardship.

Organizations

Not Permissible

• To request a candidate to list all clubs, organizations, societies and lodges to which he or she belongs.

Permissible

• To ask a candidate if he or she is a member of any organization that the candidate believes is relevant to his/her ability to perform the job.

Gender of Supervisor or Co-employees

Not Permissible

• It is not permissible to ask a candidate how he or she would feel working for or with men or women.

Disability/Medical Inquiries

Not Permissible

• The Americans with Disabilities Act makes it unlawful to ask a candidate about the existence, nature or severity of a disability. An employer may not ask a candidate with a disability how he or she became disabled.
• Additionally, an employer may not make inquires which would tend to elicit such information from a candidate.
  For example, you should not ask about a candidate's use of sick leave, or whether he or she has ever filed for workers' compensation benefits or been injured on the job. You should not ask a candidate if he or she has a disability that would interfere with his or her ability to perform the job. Further, you may not ask a candidate if he or she has ever been treated for alcohol or mental health problems, drinks alcohol or takes prescription drugs.
• An employer may not ask a candidate how often he or she will require leave for treatment or how often they will need leave as a result of incapacitation because of a disability.

Permissible

• To inquire about a candidate's ability to perform the functions of a job, with or without reasonable accommodation. You may ask a candidate to describe or demonstrate how he or she would perform the job functions only if all applicants for the job title are asked to do so. Also, you may ask a particular candidate to describe or demonstrate performance if he or she has a known disability that may interfere with or prevent the performance of a job-related function. In either case, if you request a candidate with a disability to demonstrate his or her ability to perform a job-related function, you must provide the reasonable accommodation, if one is needed, or allow the applicant to explain how, with the accommodation, he or she will perform the function.
• You may inquire as to a candidate's ability to meet the attendance requirements of the job.

Medical Examinations

• The Americans with Disabilities Act prohibits employers from conducting medical examinations before an offer of employment has been made. Once a conditional offer of employment has been made, you can require an examination, provided all candidates offered employment in this job title are required to undergo a medical exam.

Note: For further information regarding permissible and impermissible disability-related inquiries and medical examinations see EEOC Enforcement Guidance: Preemployment Disability-Related Inquiries and Medical Examination under the Americans with Disabilities Act of 1990.

Credit Record

Not Permissible

• The EEOC has found that, unless justified by business necessity, it is unlawful to reject candidates based on poor credit ratings because this has a disparate impact on minority groups.
• Similarly, unless justified by business necessity, do not inquire into a candidate'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, for the purpose of making employment decisions, as this may violate Title VII of the Civil Rights Act of 1964, and as amended.

Permissible

• To inquire as to a candidate's credit or garnishment record, if bonding is a job requirement.

Military Report

Not Permissible

• To ask a candidate if he or she has received a discharge from the military in other than honorable circumstances.
• To inquire into a candidate's military experience other than in the Armed Forces of the United States or in a State Militia.

Permissible

• To ask a candidate if he or she received a dishonorable discharge.
• To ask about a candidate's military experience in the Armed Forces of the United States or in a State Militia, or into a candidate's service in a particular branch of the United States Army, Navy, etc.

Note: Inquiries regarding military service should be accompanied by a statement that a dishonorable discharge is not an absolute bar to employment and that other factors will be considered in making a final determination to hire or not to hire.

Criminal Offenses

Not Permissible

• The Human Rights Law prohibits inquiring about any prior arrests or criminal accusations not then pending against the candidate that were terminated in the candidate's favor. This prohibition does not apply to an application for employment as a police officer or peace officer.

Permissible

• To inquire as to whether the candidate has ever been convicted of a crime.
• To inquire as to whether there are currently any arrests or criminal accusations pending against the candidate.

Note: No application for employment may be denied on the basis of the candidate's having been convicted of one or more criminal offenses, or by reason of a lack of "good moral character" based upon one or more criminal convictions, unless:

1. there is a direct relationship between the criminal offense and the employment sought; or
2. employing the individual would involve an unreasonable risk to property, or to the safety or welfare of specific individuals or the general public. (Correction Law, section 752)

In assessing whether to disqualify a candidate on the basis of one or more criminal convictions, consider the following:

• The public policy of the State is to encourage the licensure and employment of people previously convicted of one or more criminal offenses.
• The specific duties and responsibilities of the position sought.
• The nature and seriousness of the offense(s).
• The age of the individual at the time of the criminal offense or offenses.
• The extent of the individual's rehabilitation and good conduct.
• The time that has elapsed since the conviction(s).
• The legitimate interest of the agency in protecting property, and the safety and welfare of specific individuals or the general public.
• The bearing, if any, the criminal offense(s) will have on the candidate's fitness or ability to perform the job duties and responsibilities. (Correction Law, section 753)

Generally, only the Department of Civil Service has the authority to disqualify an applicant or eligible candidate who has been guilty of a crime pursuant to Civil Service Law, Section 50.4. However, the Commissioner of Corrections has the authority to disqualify candidates for the position of Correction Officer. Questions concerning disqualification should be addressed to the Department of Civil Service, Albany, New York 12239.

Language

Not Permissible

• To inquire as to a candidate's native tongue.
• To inquire as to how a candidate acquired the ability to read, write or speak a foreign language.

Permissible

• To inquire whether a candidate speaks or writes a language fluently, when it is required to successfully perform the duties of the position sought.

Education

Not Permissible

• To ask a candidate for years of school attendance or dates of graduation.

Permissible

• To inquire into a candidate's academic, vocational or professional education and the schools attended.

References

Not Permissible

• To ask for a reference from a member of the clergy.

Permissible

• To ask for the names of people willing to provide professional references for the candidate.

Licenses

Permissible

• To inquire whether a candidate has a valid professional or driver's license, if the license is required for the position sought, and to require that a candidate produce such license.