EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII/ADEA Pre-employment Inquiries

May 9, 2006

Dear:

This is in response to your letter dated April 21, 2006. You ask whether the EEOC has issued guidance on certain pre-employment inquiries. Relevant EEOC guidance is cited below. Of course, even if the EEOC has not issued guidance on a particular issue, you will want to research to determine whether there is relevant case or state law.

The Commission enforces, among other laws, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (ADEA). Title VII prohibits employment discrimination on the bases of race, color, sex, religion, and national origin. The ADEA prohibits discrimination against persons who are over age 40 and are treated less favorably than relatively younger people. Making pre-employment inquiries that directly or indirectly disclose the applicant's race, color, religion, sex, national origin, or age does not constitute a per se violation of Title VII or the ADEA.

However, unless needed for some legal purpose, such as affirmative action or obtaining applicant flow data, such inquiries may be important evidence of discriminatory selection, since it is reasonable to assume that all questions on an application form or in a pre-employment interview are asked for some purpose and that hiring decisions are made on the basis of the answers given. Gregory v. Litton Systems, 316 F. Supp. 401, 403 (C.D. Cal. 1970) (pre-employment information which is obtained is likely to be used), modified on other grounds, 472 F.2d 631 (9th Cir. 1972). Therefore, if challenged, the focus of the investigation is not on the pre-employment inquiry itself, but on the validity of the selection criterion. Employers also should not inquire about matters which may disproportionately exclude members of protected groups, unless the inquiry concerns a legitimate attribute for the job, i.e., the employer can show that the requirement is job related and consistent with business necessity. We will provide general guidance on your specific pre-employment inquiries, which are listed below.

1. Marital status and, if married, date of marriage. Number of dependents, including yourself.

The federal antidiscrimination laws do not prohibit discrimination on the basis of martial status, but some states do prohibit such on this basis. Moreover, the federal prohibition against sex discrimination would be violated if an employer were to treat men and women differently based on their marital status or existence of dependents. For example, an employer would violate Title VII if it would hire men with children but not women with children. See EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.4. Absent a business need, it would be prudent to avoid making such inquiries because, as noted above, if a selection decision is challenged, the inquiries will be evidence that those factors influenced the employment decision.

2. Are you a Vietnam veteran?

Discrimination based upon veteran's status is not covered by federal EEO laws. However, some state laws may prohibit such discrimination.

3. How long at present address?

Although some state laws may prohibit discrimination based on place of residence, federal EEO laws do not. Note, however, that Title VII would be implicated if applicants were excluded from employment because they live in an area that is comprised primarily of a particular racial or ethnic group.

4. How long at previous address?

Same answer as above

5. Are you over 18 years of age? (If not, employment is subject to verification of age.)

The federal age discrimination law applies only to persons age 40 or over and prohibits only discrimination based on relatively older age. Thus, the ADEA would be implicated only in the unlikely event that the employer was using the question to screen out all persons over age 18 and someone over age 40 were to challenge that policy.

6. Have you been convicted of a crime in the past ten years, excluding misdemeanors and summary offenses, which has not been annulled, expunged, or sealed by a court? If yes, describe in full.

Excluding applicants who have arrest or conviction records has been found to have an adverse impact on certain minorities and the employer, therefore, must show a business need for excluding such persons. Blanket exclusions from all jobs are difficult to justify. For more information, see EEOC Compliance Manual, Race and Color Discrimination, § IV(B)(2) at http://www.eeoc.gov/policy/docs/race-color.html#VIB2conviction and the following enforcement guidance.

• EEOC Enforcement Guidance No: N-915, "Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from Employment," July 29, 1987.
• EEOC Policy Guidance No: N-915, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964," February 4, 1987.
• EEOC Enforcement Guidance No: N-915-061, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII," September 7, 1990.

7. State names of relatives and friends working for us, other than your spouse.

Title VII may be violated if an inquiry as to an applicant's friends and relatives employed by the employer is used to give preferential treatment to friends and relatives of employees when the work force is made up of predominately one race or ethnic group. A policy or practice of according such a preference would reduce or eliminate opportunities for members of other protected groups and as such would violate Title VII, unless it is job related and consistent with business necessity. See, e.g., Thomas v. Washington County School Board, 915 F.2d 922, 925 (4th Cir. 1990) (in a predominately white workforce, nepotism and word-of-mouth hiring practices may operate to exclude African-Americans as effectively as any intentionally discriminatory policy).

8. Social Security Number.

Some individuals have expressed religious objections to providing a social security number to an employer. Several courts that have addressed the issue have held that the Internal Revenue Code requires employers to provide their employees' social security numbers to the IRS and that employers therefore are not required to accommodate an employee's religious objections to using social security numbers. See, e.g., Seaworth v. Pearson, 203 F.3d 1056 (8th Cir.2000), cert denied, 531 U.S. 895 (2000); Sutton v. Providence St. Joseph Medical Center 192 F.3d 826 (9th Cir.1999).

9. Did you serve in the U.S. Armed Forces? If yes, in what branch.

See response to item #2.

We hope that this information is helpful to you. Please note, however, that this is a staff letter and does not constitute an opinion or interpretation of the Commission.

Sincerely,

/s/

Dianna B. Johnston

Assistant Legal Counsel

This page was last modified on April 27, 2007.