Most employers know that it is against Oregon laws to discriminate against any employees on the basis of race, national origin, color, sex (includes gender, pregnancy and sexual harassment), sexual orientation, age (18 or older), disability, religion, marital status, family relationship, or association with a member of a protected class. Federal laws further prohibit discrimination against most of these protected classes. Employers should have strict workplace anti-discrimination policies put in place and should educate managers on how to keep the work environment free from discrimination. However, some employers may not realize that the risk of violating anti-discrimination laws exists before an employee is even hired.
Refusing to hire an applicant for discriminatory reasons is against the law. Therefore, in order to try to prevent potential discrimination in the hiring process, Oregon law prohibits certain types of pre-employment questions on both applications and in interviews. Expectedly, the law prohibits any questions requesting direct information regarding an applicant’s race, age, sex, religion, marital status, etc. However, other more indirect questions will violate the law if an employer may use the information to screen out members of protected classes. For example, questions about height, weight, or child care arrangements on applications may help an employer separate male applicants from female applicants. Also, questions regarding high school graduation dates may allow an employer to screen out older applicants.
The Oregon Bureau of Labor and Industries provides certain examples of questions and/or pre-employment practices that violate the law:
Race: What is your race? What is your eye, skin, or hair color? Requests to furnish a photograph are prohibited unless a certain appearance is a bona fide occupational requirement for the job, i.e. modeling.
Religion: Do you have a religious affiliation? If so, what is your affiliation? Are there reasons you may not work on Saturdays or Sundays?
Sex and gender: What is your gender? What is your height and/or weight? Are you pregnant? Do you have plans to become pregnant or to start a family?
Marital status: Are you married, divorced, or separated? Have you ever been previously married?
National origin: Are you currently a United States citizen? Were you born in the United States? If not, where were you born?
Family relationship: Are any of your relatives currently employed in this company? Have any of your relatives previously worked for this company?
Sexual orientation: What is your sexual orientation? Do you consider yourself to be lesbian, gay, bisexual, or transsexual? What is your gender identity? Are you in a civil union or domestic partnership?
Sometimes, questions regarding race or citizenship are necessary for affirmative action or citizenship documentation purposes. However, all affirmative action questions must come with a disclaimer that the information will never be used for hiring purposes. Also, instead of inquiring about citizenship, an employer should just state that all hired applicants will be required to present proper documentation.
If you are an employee or employer and have any questions or concerns regarding pre-employment questions or practices, call HKM Employment Attorneys today.