Memo 11
Pre-employment Inquiry Guidelines
Public school employers do not enjoy unlimited discretion when they question prospective employees. Federal and state law prohibit certain non job related inquiries, whether written or oral. More particularly, job applicants generally should not be questioned with respect to these matters:
– race
– religious creed
– color
– national origin
– ancestry
– sex
– physical handicap or medical condition (unless directly related to the particular job)
– age
– marital status
A job application should only ask questions which relate to the actual requirements of the job. For your information, we have attached to this memorandum the "Pre-Employment Inquiry Guidelines" issued by the California Department of Fair Employment and Housing (DFEH). We have also enclosed the New York State Guidelines, which have been approved by the Office of Civil Rights in the United States Department of Education.
We advise you to re-examine your current job application forms in light of these standards. In this memorandum, we discuss the most important issues pertaining to job applications.
A. Race, Religious Creed, Color, National Origin, Ancestry, and Sex. Government Code section 12940(a) provides, in pertinent part:
"It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification . . . :
“(a) For an employer, because of the race, religious creed, color, national origin, ancestry . . . or sex of any person, to refuse to hire or employ the person . . . .”
It would be difficult for a public school employer to raise a bona fide occupational qualification (BFOQ) affirmative defense to a discrimination charge based on any of these grounds. The BFOQ defenses are not generally favored. The BFOQ defense, however, might be raised where the presence of a person would interfere unduly with the privacy of others of the opposite sex. (FEHC Regulations §7286.7[a].) An example would be the presence of a male teacher in a locker room used by female athletes.
B. Physical Handicap; Medical Condition. Government Code section 12940(a) provides, in pertinent part:
"It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification . . . :
“(a) For an employer, because of the physical handicap [or] medical condition . . . of any person, to refuse to hire or employ the person . . . or to bar the person from employment . . . .”
The statutory term "medical condition" has a limited meaning and refers to cancer:
“(f) ‘Medical condition’ means any health impairment related to or associated with a diagnosis of cancer, for which a person has been rehabilitated or cured, based on competent medical evidence." (Government Code §12926[f].)
Job applicants should not be questioned with respect to affliction with cancer.
The term "physical handicap" is defined in Government Code section 12926(h) as follows:
“(h) ‘Physical handicap’ includes impairment of sight, hearing, or speech, or impairment of physical ability because of amputation or loss of function or coordination, or any other health impairment which requires special education or related services."
The employer cannot ask such questions as: "Do you have a handicap?" "If you have a disability, what is it?" "If you have a disability, how severe is it?"
The employer can require a medical examination to determine if the applicant can perform the duties of the position. The examination must be job-related. For example, an applicant for a bookkeeping position cannot be required to prove that he or she can lift heavy weights.
The medical examination should be conducted after an offer of employment has been made to the job applicant. The applicant should be told in advance that the offer is binding only if he or she successfully passes the physical examination.
C. Age. Both federal and state law prohibits employment discrimination against individuals over the age of 40. To establish that an age requirement is a BFOQ, the employer must show that the requirement is based on reasonable, business-related considerations other than age.
An example of a BFOQ is the requirement that an applicant be 18 years of age, or if he is under age, that he be able to submit a valid work permit.
D. Marital Status. Government Code 512940(a) provides, in pertinent part:
"It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification . . . :
“(a) For an employer, because of the . . . marital status . . . of any person, to refuse to hire or employ the person . . . or to bar . . . the person from employment . . . .”
It would be difficult to establish marital status as a BFOQ affirmative defense for an employer, except in the limited situation where the applicant is the spouse of a governing board member. The conflict of interest statute prohibits the hiring of an applicant who is married to a board member, subject to limited exceptions.
Employers should also note the requirements of Title 2 California Code of Regulations section 7282, which provides:
"Marital status discrimination may be established by showing that an applicant or employee has been denied an employment benefit by reason of:
“(a) The fact that the applicant or employee is not married;
”(b) An applicant’s or employee’s ‘single’ or ‘married’ status, or
“(c) The employment or lack of employment of an applicant’s or employee’s spouse."
Finally, employers should note the requirements of Title 2 California Code of Regulations section 7292.4, which provides:
“(a) Impermissible Inquiries. It is unlawful to ask an applicant to disclose his or her marital status as part of a pre-employment inquiry unless pursuant to a permissible defense.
“(b) Request for Names. For business reasons other than ascertaining marital status, an applicant may be asked whether he or she has ever used another name, e.g., to enable an employer or other covered entity to check the applicant’s past work record.
“(c) Employment of Spouse. It is lawful to ask an applicant to state whether he or she has a spouse who is presently employed by the employer . . . .”
With respect to anti-nepotism rules and similar restrictions on employment of spouses, employers should note the requirements at Title 2 California Code of Regulations section 7292.5, which provides, in pertinent part:
"(a) Employment of Spouse. An employment decision shall not be based on whether an individual has a spouse presently employed by the employer except in accordance with the following criteria:
“(1) For business reasons of supervision, safety, security or morale, an employer may refuse to place one spouse under the direct supervision of the other spouse.
“(2) For business reasons of supervision, security or morale, an employer may refuse to place both spouses in the same department, division or facility if the work involves potential conflicts of interest or other hazards greater for married couples than for other persons."
E. Height, Weight, Strength, and Agility Requirements. These types of job requirements should be imposed only if there is a BFOQ. (Title 2 California Code of Regulations section 7291.0[a]-[b].) If such standards are required, the same tests should be administered to applicants of both sexes.
F. Pregnancy and Child-Rearing Responsibilities. It is unlawful for a public school employer "to ask questions regarding childbearing, pregnancy, birth control, or familial responsibilities unless they are related to specific and relevant working conditions of the job in question." (Title 2 California Code of Regulations section 7290.9[b][3].)
G. Physical Examinations. “Job applicants may not be required to submit to polygraph, lie detector, or similar test or examination." (Labor Code §432.2.) Public school employers, however, may require all prospective employees to take physical examinations, including testing for the presence of drugs. Government Code section 12940(d) provides, in pertinent part:
“. . . Nothing in this subdivision shall prohibit any employer from making, in connection with prospective employment, an inquiry as to, or a request for information regarding, the physical fitness, medical condition, physical condition or medical history of applicants if that inquiry or request for information is directly related and pertinent to the position the applicant is applying for or directly related to a determination of whether the applicant would endanger his or her health or safety or the health or safety of others." (Emphasis Added.)
H. AIDS. Pre-employment inquiries concerning AIDS are strictly prohibited by statute. (Health and Safety Code section 199.21.)
I. Criminal Records. The general rule is that no employer shall ask an applicant for employment to disclose information concerning an arrest or detention that did not result in a conviction, but nothing shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial. More specifically, Labor Code section 432.7(a) provides, in pertinent part:
"(a) No employer whether a public agency or private individual or corporation shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention which did not result in conviction, or information concerning a referral to and participation in any pretrial or posttrial diversion program . . . .”
An exception is made for arrests for which the employee is still awaiting trial. (Id.) An exception is also made for persons seeking to become peace officers, e.g., campus security guards. (Labor Code section 432.7[d].)
J. Citizenship and National Origin. Federal and state law prohibits employment discrimination against persons who are not citizens. The verification procedures required by the Immigration Reform and Control Act (IRCA) are implemented only after an employee has been hired, i.e., they are not pre-employment inquiries.
K. References. Public school employers routinely require applicants to provide references from previous employers. In some instances, the applicant may have left after resolving differences with the previous employer by way of a settlement agreement. The settlement agreement, in turn, may have limited the previous employer’s ability to provide negative information. Of course, such an agreement prevents another prospective employer from obtaining a complete picture of the job applicant.
To deal with this problem, we recommend that the following language be placed on the job application form:
"References. The Applicant agrees that this employer may contact any prior employer listed on this performance and reason(s) for departure. The applicant agrees that this employer may decline to consider this application further if one or more of the applicant’s prior employers refuses to fully answer any of this employer’s questions about job performance and reason(s) for departure. This application constitutes written waiver and may be presented for that purpose to any prior employers."
An employer is not required to disclose information about a former employee. The employer is prohibited from making misrepresentations which prevent or attempt to prevent a former employee from obtaining employment. (Labor Code sections 51050-51053.)
Also, the Commission on Teacher Credentialing has issued formal rules of professional conduct relating to references. (Title 5 California Code of Regulations §80332.) The facts about the employee cannot be misrepresented, and references cannot intentionally omit significant facts.
L. Drug Testing. Public school employers may routinely require all applicants (for classified and certificated positions) to successfully pass a drug test as a condition of employment. (Review paragraph G.)
The Public Employment Relations Board (“PERB”) has not yet ruled on this question. However, PERB generally follows the National Labor Relations Board (“NLRB”) precedents. The NLRB has approved pre-employment screening. More specifically, the NLRB has held that pre-employment drug and alcohol testing is not a mandatory subject of bargaining. Unilateral implementation of pre employment testing is not an unfair labor practice. (Star Tribune and the Newspaper Guild of the Twin Cities, Local 2, 295 NLRB No. 63 [June 15, 1989].)