Employment in the USA is one of the most protected sectors with numerous labor laws passed to protect job seekers and employees. Under the EEOC, many laws make it illegal to discriminate against applicants based on their race, color, religion, sex, their nation of origin, and disability. The laws also make it illegal for a company or an employee because he or she complained about discrimination or filled a charger of discrimination ( Taylor & Emir, 2015) . For example, it is illegal for an employer in the country to publish any advertisement that shows any preferences or discourages anyone from applying for any job based on race, sex, color, religion, or disability. An employer can ask various questions during the recruitment and while some can be inappropriate. This paper looks at some of the legal implications of the hiring process in regards to the questions that the employer cannot ask the job applicant in the hiring process.
Every employer has to understand that every job applicant has legal rights even before they become employees. The federal law requires that the employer does not discriminate in its hiring process based on the race, nationality, gender, disability, religion, and pregnancy. There is also some additional provisions form state and local laws that protect the interest of job applicants ( Walsh, 2015) . The employers must ensure they adhere to all the anti-discriminatory laws at every stage in regards to the hiring process. This includes advertisement, interviewing, and the selection process. The employer has to take note of the questions they are asking as this can be used against them in a court of law ( Taylor & Emir, 2015) . It is important to note that America is a diverse nation with many minority groups that are prone to discrimination if not protected by the law. For example, people living with disabilities may be merited to work on a certain job but maybe disqualified due to their disability that may not even be related to the job. Minority groups may not have had a chance of accessing education similar to that of the majority group, which means that asking questions related to education may be seen as a form of discrimination ( Andrews & Gaby, 2015) .
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One of the questions that the employer cannot ask is about the age of the employee. This is only allowed if the job has a mandated legal minimum age requirement. Questions to do with age are irrelevant unless the employer is concerned about any possibility of having child labor violations as provided under the Fair Labor Standards Act where one can ask for proof that the individual is old enough to work ( Taylor & Emir, 2015) . For example, the employer employing someone as a salesperson in an alcohol business should ensure that the person is at least 21 years. The employer should avoid asking questions related to when a person did his or her college education as the courts may view this as evidence of age discrimination ( Zschirnt & Ruedin, 2016) . The Age Discrimination in Employment Act of 1967 (ADEA) usually covers those employers who have at least 20 employees. This law is aimed at protecting any discrimination against job applicants who are 40 years or older. The Act implies that the employers should not attempt to reject an applicant based on age or attempt to replace an employee with a younger entrant unless allowed by law as this would qualify to be discrimination based on age ( Zschirnt & Ruedin, 2016) . This mainly applies to job advertisements. As stated, an employer is prohibited from publishing any ads that show preference or discourage an individual from applying based on age, religion, sex, gender identity, sexual orientation or color. For example, an ad aimed at recent college graduates may discourage people over 40 from applying and, therefore, qualifying as discrimination under ADEA.
Consequently, the employer may not ask if an applicant is a US citizen unless in situations required by law. Ideally, many people in the country are looking for jobs and have received work permits to work in the USA. Such individuals have to be protected by the government and the law for them to live with dignity. The Immigration Reform and Control Act term it as discriminatory for the employer to seek such information ( Walsh, 2015) . However, the employer may ask if the candidate has any authorization to work in the USA. In such a case, the employer can ask for original documentation to test the authenticity but may not ask about the nationality of origin of the applicant or that of the relatives ( Zschirnt & Ruedin, 2016) . The employer is also prohibited from asking the applicant if they speak any other language apart from English unless there is a legitimate employment reason ( Player & Sperino, 2017) . Moreover, even in those situations where the employer can ask about the language abilities of the applicant, they cannot ask where the individual attained the abilities to speak the foreign language. Unless allowed, the employer cannot demand that all employees or applicants speak English at all times. The Immigration Reform and Control of 1986 (IRCA) protects applicants from any form of discrimination based on national origin or their citizenship.
Similarly, it is considered illegal for an employer to ask a candidate about their race or color or that of their background. It is paramount for the employers to ensure that they ask the same set of questions for all the applicants going through the hiring process ( Walsh, 2015) . The employer cannot ask for the candidate’s gender or tend to pose any questions that may apply to only one specific gender ( Player & Sperino, 2017) . For example, the employer cannot ask questions such as whether the applicant has children or intends to have any in future even though the question is to be asked of every applicant or candidate. Often, the court may be of the view that the question is aimed at an attempt by the employer to avoid hiring women.
Plans for childcare should not be made a part of the hiring process as should requirements not related to the job. For example, it against the law for the employer to put height restrictions on a job as this would potentially discriminate against women in the hiring process ( Andrews & Gaby, 2015) . Rejected applicants based on any of the above principles might have enough grounds to file a lawsuit if any of the questions were a part of the application process ( Walsh, 2015) . The Civil Rights Act of 1964 Title VII offers protection against any discrimination based on race, gender, national origin, religion and color ( Paul-Emile, 2014) . The law also started the EEOC. The Pregnancy Discrimination Act of 1978 (PDA) offered the clarification that pregnancy and other related conditions are supposed to be considered a subset of the gender when it comes to discrimination ( Player & Sperino, 2017) . The law, in particular, prohibits an employer from treating women with pregnancy as less favorable than those employees who face medical conditions that have similar limitations as those brought by pregnancy.
In some cases, the employer may want to consider the background of the applicants when making decisions in the hiring process. Although there are some instances when the employer may be justified in conducting a background check, he or she has some limitations on what they can do ( Zschirnt & Ruedin, 2016) . The Federal Trade Commission (FTC) and the EEOC have the mandate of enforcing federal laws against any form of employment discrimination ( Barak, 2016) . In most cases, the employer is required to get the written permission of the applicant before getting the background report. The Federal Bankruptcy Act Section 525 makes it illegal for the employer to use the past debt of the applicant of bankruptcy claims when deciding on the hiring process ( Walsh, 2015) . The employer never asks about bankruptcy as it is illegal to discriminate because of bankruptcy as Fair Credit Reporting Act requires.
Criminal history is the other main area that employers usually look at when they are deciding on whether to hire an applicant or not. Criminal record and the arrest records form one of the most controversial concepts in employment law. The employer may ask about convictions but may not ask about arrest records ( Player & Sperino, 2017) . However, even if they ask about convictions, the questions must be relevant to the position in such a way that it leads to an automatic rejection of the applicant ( Walsh, 2015) . Whereas the federal law does not prohibit employees from asking questions about the criminal history, there are various ways that the employer may not use the criminal history in the hiring process. Firstly, the employer has to make sure that all the applicants with the same criminal histories are treated the same ( Player & Sperino, 2017) . Similarly, those with similar criminal history should be treated differently base on the race, nationality or any other characteristic that is protected by law ( Zschirnt & Ruedin, 2016) . In case the employer has to make use of questions related to the criminal history, the questions are related to the job in question. Sometimes, some individuals are thought to have higher rates of conviction as compared to others. In case the employer does not demonstrate that the process used in the screening process is related to the job, then it may be termed as violation of the Title VII.
In regards to disabilities, the employer can ask the candidate if they are capable of performing some of the tasks associated with the job. However, it is important for the employer to phrase the question in the right way to avoid any problem. For example, the employer should ensure they explain that the job requires one to lift boxes and ask if one can meet the requirement ( Barak, 2016) . It is not right for one to ask if the individual is disabled and then attempt to justify that he or she wanted to get information about the ability of the applicant to lift boxes. The employer should avoid asking any questions that can be interpreted as asking for non-job related disabilities ( Zschirnt & Ruedin, 2016) . Similarly, the employer cannot ask if a candidate has any history of filling for any compensation claims. Asking the applicant of having any current of medical conditions is prohibited. The Americans with Disabilities Act of 1990 (ADA) protects applicants against any form of discrimination based on disabilities. It is crucial for the employer to ensure that the main focus on the job and not on disability.
Another major concern that the employer has to consider is the driver’s license. The employer has to avoid asking such questions unless the job requires on to have a driver’s license. In fact, the employer may statistically discriminate against females, individuals with disabilities, as well as, minorities ( Barak, 2016) . Moreover, the employer should also avoid asking questions about educational attainment as it may potentially prevent minorities from getting jobs as some of them are not able to access the same educational requirement ( Paul-Emile, 2014) . It is also unnecessary to ask about the emergency contacts of a person during the hiring process. Possibly, some of the questions may be discriminatory if they reveal information about the membership of the applicant in a protected class. Under the Civil Right Act of 1964, the employer cannot ask about the English language skills of an applicant as this is considered discriminatory based on their nationality ( Zschirnt & Ruedin, 2016) . However, the only exemption is when one is applying as an English teacher. Consequently, any questions on the marital status, name changes, and spouse are also prohibited during the hiring process as they are considered discriminatory against women and that they are not job-related.
Concerning union affiliations, an employer may ask a candidate if they belong to any organization that is related to the job in question. However, it is against the law to ask for any involvement of the applicant to any organization that is considered a protected group. Moreover, an employer may ask the candidate if they are willing to work overtime in the organization ( Barak, 2016) . However, it is against federal law to ask the applicant why the applicant cannot work on specific days. This may open the doors for lawsuits against the employer the Civil Rights Act of 1964, which protects against any form of discrimination based on race, color, national origin, and religion. It also applies to instances where an employer cannot ask for references of an applicant to a priest or any other individual during the hiring process.
In conclusion, the diversity of the American population raises many concerns when it comes to employment. There is a need for the government to ensure there is the protection of individuals living in the country and willing to work there. All the employment laws are supposed to act as a form of guidance to employers on how they can conduct themselves to avoid going against federal laws in the country. Failure to comply with such laws leads to lawsuits awarding millions of dollars to victims of such discrimination. Consequently, employers should avoid questions that depict a lot of bias towards a specific group based on the diverse aspect of the American population. Such laws aim to make it easier for every person in the country to access employment and have a way of living a dignified life without any discrimination if he or she is merited in what they are applying for. Therefore, the law prohibits employers from asking about the nationality the applicant as long as they are American Citizens.
References
Andrews, K. T., & Gaby, S. (2015, June). Local protest and federal policy: The impact of the Civil Rights Movement on the 1964 Civil Rights Act. In Sociological Forum (Vol. 30, No. S1, pp. 509-527).
Barak, M. E. M. (2016). Managing diversity: Toward a globally inclusive workplace . Sage Publications.
Paul-Emile, K. (2014). Beyond Title VII: Rethinking Race, Ex-Offender Status, and Employment Discrimination in the Information Age. Virginia Law Review , 893-952.
Player, M., & Sperino, S. (2017). Federal law of employment discrimination in a nutshell . West Academic.
Taylor, S., & Emir, A. (2015). Employment law: an introduction . Oxford University Press, USA.
Walsh, D. J. (2015). Employment law for human resource practice . Nelson Education.
Zschirnt, E., & Ruedin, D. (2016). Ethnic discrimination in hiring decisions: a meta-analysis of correspondence tests 1990–2015. Journal of Ethnic and Migration Studies , 42 (7), 1115-1134.
