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 Texas, as in other states, employers are advised to avoid asking job applicants about personal characteristics that are protected by law. This includes inquiries about race, color, ethnicity, religion, disability, sex, gender identity, sexual orientation, pregnancy status, number of children, marital status, birthplace, country of origin, citizenship, age, or genetic information. Such questions can be seen as discriminatory and may lead to legal challenges under federal laws enforced by the Equal Employment Opportunity Commission (EEOC) and relevant state statutes. Employers should refrain from asking about an applicant's disability or health conditions before a job offer is made, although they can ask if an applicant can perform job-related tasks or if they need reasonable accommodation for the application process or job duties if a disability is disclosed or obvious. Affirmative action laws may allow employers to invite voluntary self-identification for individuals with disabilities in certain circumstances. Additionally, questions about genetic information, including family medical history, are prohibited. Employers should focus on the applicant's qualifications and ability to perform the job without regard to these protected characteristics to avoid potential discrimination complaints.
