Robert (Rob) J. Reid, J.D.
Margaret (Meg) Paul, PHR, SPHR
100 East Eighth Street
Cincinnati, Ohio 45202
(513) 421-3131 ext. 2860
Fax: (513) 421-6225
Interview and Termination Tips
BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ)
Certain questions violate the law unless a BFOQ exception applies. A BFOQ exception allows an employer to make an employment inquiry only where the inquiry is reasonably necessary to the normal operation of the employer’s business and there is no less intrusive way to ensure that the applicant will be able to perform the essential functions of the job in questions. In order to be a BFOQ, a characteristic must be absolutely essential to the applicant’s ability to perform the job. For example, being female would be a legitimate BFOQ for a person applying for a job as a model of women’s clothing. The BFOQ exception applies only in limited circumstances, and, in general, courts have been extremely reluctant to sanction otherwise discriminatory practices on BFOQ grounds. Employers should use caution in relying on the BFOQ rationale and should always consult with legal counsel before making any inquiries on the basis of a BFOQ.
QUESTIONS THAT MAY PRESENT LEGAL ENTANGLEMENTS
Questions about certain topics may present legal problems if asked in an improper manner or at an inappropriate time. Some topics that may cause problems for an inexperienced interviewer are discussed below.
Asking about a applicant’s age may create the impression that applicants of a certain age are preferable. This could lead to a claim of age discrimination. The federal Age Discrimination in Employment Act (ADEA) prohibits discrimination in employment against person who are 40 years old or older. Some states prohibit age discrimination against people of all ages. For more on the requirements of ADEA, see the national and state AGE DISCRIMINATION section.
To avoid discrimination claims based on national origin, race, creed, and gender, employers should not make inquiries about an applicant’s name that might indicate the applicant’s lineage, ancestry, national origin, descent, or marital status. In order to perform a background check, employers may ask if an applicant has worked or attended school under other names.
GUIDE for QUESTIONING APPLICANTS
It is illegal for employers, labor unions or employment agencies to discriminate against persons because of their race, color, religion, sex, national origin, disability, age or ancestry. Under the Law, employers are prohibited from eliciting information from applicants, prior to employment, which would indicate the applicant’s race, color, religion, sex, national origin, disability, age, ancestry or military status unless the employer is required to elicit such information pursuant to a bona fide Affirmative Action program or under order from a state, federal or local FEP agency.
This guide is not a complete definition of what can and cannot be asked of applicants. It attempts to answer the questions most frequently asked concerning the Law. The Law is not intended to prohibit employers from obtaining all the information about applicants that is clearly job related and which cannot be used for discriminatory purposes.
The Law does not restrict employers from defining qualifications necessary for satisfactory job performance, but it does require that standards of qualifications for hiring be applied alike to all persons regardless of race, color, religion, sex, national origin, disability, age or ancestry.