In job applications, employers should avoid asking applicants about personal characteristics that are protected by law, such as race, color, ethnicity, religion, disability, sex, gender, sexual identity, sexual orientation, religion, pregnancy status, number of children, marital status, birthplace, country of origin, citizenship, age, or genetic information. These types of questions may discourage some individuals from applying, may be viewed suspiciously by some applicants, and may be considered evidence of intent to discriminate by the Equal Employment Opportunity Commission (EEOC). If an employer does not have this information when deciding who to hire, it may be easier to defend against a discrimination complaint.
For example, an employer should avoid questions:
• about race, religion or ethnicity, such as:
o Are you biracial?
o Which church do you attend?
o What language(s) do you speak at home?
• about age, unless used to verify that applicants meet any age-related legal requirements for the job.
• about an applicant's pregnancy or plans to start a family, such as:
o Are you pregnant?
o Do you plan to have children within the next year?
• about the applicant’s gender identity or sexual orientation, such as:
o Do you have a boyfriend or girlfriend?
And before a job offer has been made, an employer should not ask an applicant questions about the applicant’s disability or questions that are likely to reveal whether an applicant has a disability—even if the disability is obvious. The employer may ask the applicant to describe or demonstrate how the applicant would perform specific job tasks but can’t ask about the disability. For example, an employer can’t ask an applicant questions like:
• Do you have a disability?
• What medications are you currently taking?
• Have you ever filed a workers’ compensation claim?
But in certain circumstances an employer can ask an applicant—during the application process or on the job—if the applicant will need a reasonable accommodation. For example, an employer can ask an applicant with a disability that is obvious or that the applicant disclosed (1) if the applicant will need assistance with or a change to the application process because of the disability or (2) if the applicant will need a change to the work environment or to the way a job is usually done if the employer reasonably believes the applicant will need a reasonable accommodation to perform the job.
Federal, state, or local laws sometimes permit or encourage affirmative action, and in those cases an employer may invite applicants to voluntarily self-identify for purposes of the employer's affirmative action program if:
• the employer is undertaking affirmative action because of a federal, state, or local law (including a veterans’ preference law) that requires affirmative action for individuals with disabilities—that is, the law requires some action to be taken on behalf of such individuals; or
• the employer is voluntarily using the information to benefit individuals with disabilities.
Similarly, an employer should not ask questions about an applicant’s genetic information, such as the applicant’s family medical history or genetic tests or genetic counseling. For example, an employer should not ask an applicant questions like:
• Have any of your close relatives had a heart attack or been diagnosed with a heart condition?
• Do mental health conditions such as bipolar disorder, depression, or schizophrenia run in your family?
• Have you had genetic tests to determine whether you are at risk for cancer?
In New York, as in other states, employers are required to comply with federal laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA), which prohibit discrimination in employment on the basis of protected characteristics including race, color, religion, sex, national origin, disability, age, and genetic information. New York State law, specifically the New York State Human Rights Law, also prohibits discrimination on these bases as well as on the basis of sexual orientation, gender identity, and military status. Employers should avoid asking job applicants questions that directly or indirectly relate to these protected characteristics, as such inquiries may suggest an intent to discriminate and could be used as evidence in a discrimination claim. Questions about an applicant's race, ethnicity, religion, age, pregnancy status, plans to start a family, gender identity, sexual orientation, or disability are generally off-limits unless they are directly related to job requirements or are for the purpose of affirmative action programs as permitted by law. Employers may ask about accommodations if an applicant's disability is obvious or disclosed, but they should not inquire about the existence of a disability or the specifics of medical conditions or medications. New York employers must be particularly cautious to adhere to both federal and state anti-discrimination laws to avoid legal challenges.
