Wednesday, March 01, 2000
by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the March 2000 issue of the Journal
Question: I understand that it is illegal to ask certain questions on an application for employment, but I am confused as to what I can and cannot ask. Since most dentists are also employers, it would be helpful if you could enlighten the profession on the laws applicable to employment applications.
Answer: Under federal law, pre-employment inquiries concerning race, color, religion, sex, or national origin are not considered violations of the law in and of themselves. However, such inquiries may constitute evidence of unlawful discrimination unless otherwise explained. Under Michigan law, however, employers are expressly prohibited from making such pre-employment inquiries (MCLA 37.2202).
The permissible and impermissible areas of inquiry during the hiring process under Michigan law, compiled from the Michigan Department of Civil Rights' Pre-Employment Inquiry Guide (CR 479, revised May 1999), are as follows:
- Address or duration of residence. It is lawful to ask how long the applicant has been a resident of the state or city.
- Age. It is lawful to ask if the applicant is 18 years of age or older, but only for the purpose of determining whether the applicant is of legal age for employment. Because of age discrimination concerns, it is unlawful to ask the applicant's age or date of birth.
- Arrests and convictions. It is lawful to ask (1) if the applicant has ever been convicted of a crime and, if so, when, where, and the nature of the offense; or (2) whether there are any felony charges pending against the applicant. It is unlawful to inquire generally regarding arrests that did not result in conviction, except for law-enforcement agencies.
- Birthplace. It is unlawful to ask (1) the birthplace of an applicant; or (2) the birthplace of an applicant's parents, spouse, or other close relatives. It is also unlawful to require the applicant to submit a birth certificate, naturalization papers, or baptismal record.
- Citizenship. It is lawful to ask (1) whether the applicant is a citizen of the United States; (2) if not a United States citizen, whether the applicant intends to become a citizen of the United States; (3) if not a United States citizen, whether the applicant has the legal right to remain permanently in the United States; or (4) whether the applicant intends to remain permanently in the United States. To avoid discrimination based on national origin, the questions above should be asked after the individual has been hired. Unless asked as part of the federal I-9 process to ensure that an illegal alien is not being hired, it is unlawful to ask (1) the applicant's country of citizenship; (2) whether the applicant is a naturalized or native-born citizen; (3) the date when the applicant acquired citizenship; or (4) whether the applicant's parents or spouse acquired citizenship. It is also unlawful to require an applicant to produce naturalization papers.
- Education. It is lawful to inquire into an applicant's academic, vocational, or professional education and the public or private schools he or she attended.
- Experience. It is lawful to inquire into work experience and inquire as to countries the applicant has visited.
- Disability. It is lawful to ask whether the applicant can perform the essential duties of the job, with or without accommodation. It is unlawful to ask questions about an individual's physical or mental condition where that condition is not directly related to the requirements of the specific job and where the answers are used to make employment decisions contrary to the provisions of the Persons with Disabilities Civil Rights Act.
- Height. It is unlawful to inquire about the applicant's height.
- Marital status and children. It is unlawful (1) to require an applicant to provide any information regarding marital status or children; (2) to ask whether the applicant is single or married; (3) to ask for the name of the applicant's spouse; (4) to ask whether the applicant's spouse is employed; or (5) to ask whether the applicant has children. It is lawful to ask whether the company employs the applicant's spouse.
- Name. It is lawful to ask (1) the applicant's full name; (2) whether the applicant has ever worked for the company under a different name; or (3) whether any additional information relative to a different name is necessary to check the applicant's work record and, if so, an explanation as to why. It is unlawful to ask (1) the original name of an applicant whose name has been changed by court order or otherwise or (2) the applicant's maiden name.
- National origin. It is lawful to inquire into languages the applicant speaks and writes fluently. It is unlawful to inquire into (1) the applicant's lineage, ancestry, national origin, descent, parentage or nationality unless pursuant to the federal I-9 process; (2) the nationality of the applicant's parents or spouse; or (3) how the applicant acquired the ability to read, write, or speak a foreign language.
- Notice in case of emergency. It is lawful to ask the name and address of the person to be notified in case of accident or emergency. It is unlawful to ask the name and address of the nearest relative to be notified in case of accident or emergency.
- Organization. It is lawful to inquire into the organizations of which an applicant is a member, excluding organizations the name or character of which indicates the race, color, religion, national origin, or ancestry of its members. It is unlawful to ask the applicant to list all clubs, societies, and lodges to which he or she belongs.
- Photograph. It is unlawful to require a photograph prior to hire.
- Race or color. It is unlawful to inquire as to the applicant's complexion or skin color.
- Relatives. It is lawful to inquire as to the names of the applicant's relatives already employed by the company. It is unlawful to inquire as to the address of any relative of the applicant, other than the address (within the United States) of the applicant's father, mother, husband/wife, and minor dependent children.
- Religion or creed. It is unlawful to inquire into an applicant's religious denomination, religious affiliations, church, parish, pastor, or religious holidays observed.
- Sex. It is unlawful to identify the applicant by Mr., Ms., Miss, or Mrs. or make any inquiry regarding sex. It is also unlawful to inquire about the applicant's ability to reproduce or his or her advocacy of any form of birth control.
- Weight. It is unlawful to inquire about the applicant's weight.