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July 10, 2007 > Watercooler Counsel

Watercooler Counsel

Questionable Questions

By Rich Proulx and Malinda Tuazon

We get so many questions about job interview and application queries, we are writing a series of columns on the fine art of asking and answering them.

Scrutiny Mutiny

Q: Recently I applied to teach math at a private school. The application was extremely thorough, maybe too thorough. It asked for my nationality, height and weight, and physical disabilities; whether married or divorced, number of children, and plans to marry within the next year (and if so, name and employer of spouse); musical abilities, and hobbies. I was also asked to give testimony of my personal salvation experience, how frequently I attended church, my attitude and practice toward soul-winning, and my practice and belief regarding tithing. Can they legally ask for all that information?

Overwhelmed in Fremont


A: Let's start with the questions regarding religion. While Federal law prohibits most employers from making hiring, firing and other employment decisions based on an applicant or employee's religious beliefs or practices (or lack thereof), it is not per se illegal to ask you questions regarding your religion. But these questions could be potential evidence of the employer's discriminatory intent, for instance if you wound up filing a religious discrimination claim.

Note: under the law, there is an exception for religious organizations, which are allowed to employ people of their own religion. If this school is an exempt religious organization, then it can likely ask applicants about religious background, beliefs, and practices and make employment decisions based on the answers without violating the law. This exception, however, is limited to discrimination based on religion, so even religious organizations are generally not permitted to discriminate on other protected basis, such as race, national origin, or sex.

Questions about an applicant's nationality, while not per se illegal under Federal law, may be used as evidence of an employer's discriminatory intent. These are questions for employers to avoid.

Any questions that ask an applicant to divulge whether or not he or she has any physical or mental disabilities, questions about present or past physical or mental health treatment, and questions about present or past use of medication, especially before there is even a job offer on the table, are plain illegal under the Americans with Disabilities Act. On the other hand, questions about height and weight are not considered disability-related. (Even if these questions may sometimes reveal that an applicant has a condition such as dwarfism or morbid obesity - both of which may be disabilities - they will usually reveal no more than normal deviations in height or weight, which are not disabilities.)

In many states (including Alaska, California, Oregon, and Washington) it is also illegal to discriminate based on marital status.

In sum, there are some questions that are on their face illegal, and some that are inappropriate. The harder question is what to do about it: do you fill out the questionnaire? Talk to the school's hiring official about the questions that concern you? File a complaint with the EEOC or your state or local fair employment practices agency? Clip out this column and anonymously send it to the school? I think the answer depends on how good a fit you are for the school and the school for you.

Lastly, musical abilities and hobbies are pretty safe territory to inquire after (although anyone who has heard either of us singing in the shower may disagree!)


Send your questions to Watercooler.Counsel@eeoc.gov. Thirty-nine percent of human resource professionals said that said that the most common mistake made by job seekers was arriving late to the interview, according to a survey by HRnext.com. Rich is a former Supervisory Investigator and Malinda is a current Federal Investigator for the Equal Employment Opportunity Commission www.eeoc.gov. Identifying information in the questions may be fictional.

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