By Michael Rhoads, October 20, 2021
Executive Order 14035 on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce charges agencies with identifying “strategies to advance diversity, equity, inclusion, and accessibility, and eliminate, where applicable, barriers to equity, in Federal workforce functions, including: recruitment; hiring … and onboarding programs.”
Because the Federal government will be going on a hiring spree in the next several months, it might be a good time to consider what you can and cannot say during the hiring process. (Also see Training Director Dan Gephart’s article 5 Suggestions for Hiring the Right Person.)
Pre-employment inquiries are a critical stage where the wrong question, whether on an application, in an interview, or on a reference check, can lead to legal action if the applicant is not selected for the job. When seeking information from an applicant, ask yourself: “Does the information pertain to an essential job function?”
For example, if a person is applying for a warehouse position where most packages weigh up to 30 pounds, it is appropriate to ask an applicant if they can lift 30 pounds on an application form.
In Prohibited Employment Policies/Practices, the EEOC advises:
As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.
The EEOC also has some notable advice when it comes to the gray areas regarding an applicant’s race, marital status, or disability.
It is prohibited by law to consider a person’s race when applying for a job. At the same time, agencies and employers are asked to keep track of demographic information, including race, that is reported to the EEOC. The EEOC advises to keep this information separate from the applicant’s information.
One example of this would be to use a “tear-off” sheet when collecting demographic information, and file it separately.
Marital status, children
Our personal relationships are an intricate part of our private lives, but these relationships are off limits when it comes to pre-employment questions. Typically, these questions have been used to discriminate against women. Yet, an agency is not off the hook if the same question is asked of both men and women. EEOC’s short list of topics to avoid related to marital status and children are:
- Whether applicant is pregnant.
- Marital status of applicant or whether applicant plans to marry.
- Number and age of children or future child-bearing plans.
- Child-care arrangements.
- Employment status of spouse.
- Name of spouse.
This is one topic where EEOC’s guidance is cut and dry. “Employers are explicitly prohibited from making pre-offer inquiries about disability.”
There are some pre-offer questions related to reasonable accommodation that are permitted, however. If an applicant has an obvious or voluntarily disclosed disability or need for accommodation, an agency may ask limited questions related to how to accommodate the applicant. A full list of recommendations on these and other pre-employment inquiries can be found on the EEOC’s website at EEOC Prohibited Employment Policies/Practices.
Once a conditional offer is extended to an applicant, the rules change slightly.
To get a better understanding of what you need to know throughout the hiring process, join Katherine Atkinson on October 26 from 1:00-4:30 ET for Nondiscriminatory Hiring in the Federal Workplace: Advancing Diversity, Equity, Inclusion and Accessibility.
Stay safe, and remember, we’re all in this together. Rhoads@FELTG.com