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: Preemployment Inquiries

March 27, 2001

Dear:

Thank you for your letter concerning potential discriminatory hiring practices. Our Tampa Area Office forwarded your letter to us for response.

The EEOC enforces Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., which prohibits discrimination on the basis of race, color, sex, religion, and national origin; the Equal Pay Act of 1963 (EPA), 29 U.S.C. § 206(d), which prohibits employers from paying unequal wages to employees of the opposite sex within the same establishment and performing substantially equal work; the Age Discrimination in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. § 621 et seq., which protects employees age 40 or over from discrimination because of age; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., which bars employment discrimination against qualified individuals with disabilities on the basis of their disabilities; and the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., which prohibits discrimination in federal employment on basis of disability.

In your letter, you asked if it is legally permissible for an employer to require applicants to respond to a job advertisement by telephone. More specifically, you expressed concern that an employer who requires applicants to respond by telephone could unlawfully screen out applicants, on the basis of sex, race, or age, through voice recognition. You also asked if the Commission has developed policy addressing this type of concern.

Typically, requiring applicants to respond to job advertisements by telephone will not violate Federal employment discrimination law. I say "typically" because there may be exceptions to this general rule in the context of the ADA. It is conceivable that such a policy could, for instance, impede an individual with a disability (such as an individual with a hearing impairment) from applying. Generally, though, employers enjoy wide discretion in formulating hiring procedures and may accept applications in any number of ways, including orally, in writing, or via electronic format.

It would be unlawful under both Title VII and the ADEA for an employer to eliminate an applicant from consideration because the applicant "sounded" as if she or he belonged to a legally-protected class, just as it would be unlawful for an employer to screen out female applicants, for example, by looking at the names printed on written employment applications. It is the employer's decision to screen out the individual based on a legally-protected characteristic that gives rise to the cause of action, however, and not the employer simply having learned of that characteristic.

The Commission has issued policy addressing the issue of discriminatory job-advertising practices. See EEOC Compliance Manual Section 632.2 (BNA); Threshold Issues, EEOC Compliance Manual (BNA) Notice 915.003 (May 12, 2000). According to this policy, an employer is prohibited from structuring its job advertisements in such a way as to indicate that a group (or groups) of people would be excluded from consideration for employment. Advertisements also may not contain terms or phrases that would deter members of a particular class from applying. There is only one narrowly-defined exception to this rule for a bona fide occupational qualification.

It is unclear from your letter whether you believe that you have been the victim of discrimination in hiring. If you believe you have been, we urge you to contact the appropriate EEOC office to explore whether or not you should file a charge. You will find contact information for all of the Commission's field offices at our website at www.eeoc.gov. You may also access the Commission's Enforcement Guidance on our website.

We hope the above information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of §713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-12(b).

Sincerely,

Dianna B. Johnston
Director, Title VII/ADEA/EPA Division
Office of Legal Counsel

This page was last modified on April 27, 2007.