EEOC Priorities and Questions to Avoid in the Hiring Process

by Snell & Wilmer

On December 17, 2012, the EEOC approved its strategic enforcement plan for 2013-2016. Listed first among its national priorities is eliminating barriers in recruitment and hiring. Specifically, the EEOC stated that it will “target class-based intentional recruitment and hiring discrimination and facially neutral recruitment and hiring practices that impact particular groups.”[1] The focus here is on exclusionary policies, steering individuals into certain jobs based on their membership in particular protected groups and pre-employment screening tools.

While the EEOC does not claim to list its priorities by importance, there may be some significance to the fact that it listed recruitment and hiring practices first and employers would do well to revisit their hiring practices to make sure they are not “asking” for the EEOC’s attention by perpetuating habits, policies or procedures that conflict with the Commission’s new strategic enforcement priorities.

One place to start is the job interview. By now, virtually all employers know to avoid asking applicants questions that touch on protected categories such as race, national origin, sex, disability, religion and age. However, knowing that and actually accomplishing it are two different things. Certain questions, and more specifically the answers given, can put unwanted information in the employer’s hands.

Once that information is out there, it is hard to later claim that it did not factor into the employer’s hiring decisions. Consider the following:

A peer employee takes a prospective employee out to lunch during the interview process. During the lunch, he tells the applicant that he likes to cook and inquires if the applicant does as well. She says yes. He then asks,

Interviewer: “What kind of things do you like to cook?”

Applicant: “Dishes from my home country of ____.”

Regardless of what the answer is, it may be problematic for the employer. Seemingly innocuous questions about non-job related activities, like cooking, carry with them the risk that if the applicant in the above scenario does not get hired, she will claim it was because of her national origin. Likewise, questions about how many children an applicant has and what the applicant’s child care arrangements are, when asked of a female applicant, can lead to allegations that those same questions would have not have been asked of a male applicant.

In addition, focusing too much on an employee’s background may also lead to a hot-button issue that the EEOC has been targeting of late – arrests and criminal convictions. The EEOC has taken the position that blanket rules against hiring individuals with arrest and conviction records can have an adverse impact on some protected classes. The EEOC issued guidelines for considering arrest and conviction records in the hiring process. These guidelines garnered a lot of attention last year and were the subject of two Snell & Wilmer Workplace Word articles: Criminal Background Checks – Title VII and the Fair Credit Reporting Act and Individualized Assessments for Criminal Background Checks. While this area of the law will be in flux for the foreseeable future, as both the EEOC and courts further flesh out the contours of the EEOC’s position, employers would do well to remember that any questions related to the applicant’s background and, in particular, arrests and convictions, should be individualized to each applicant and related to the duties and requirements of the position for which they are hiring.

Employers should also remember to be cautious when asking questions that may elicit information regarding an applicant’s disability. Most employers know that they cannot directly ask for information on the physical or mental conditions that an applicant has or is being treated for or whether the applicant has any condition or disability that she believes may affect her job performance before being given a job offer. But, employers can ask whether an applicant can perform the required job duties, with or without an accommodation.[2] If the applicant says she can perform a task with an accommodation, then the employer can ask what that accommodation is. This could turn into a slippery slope for the untrained interviewer who may want to empathize with an applicant who identifies certain accommodations because, for example, the inteviewer’s mother requires the same type of accommodation due to her disability. If the interviewer shares that bit of personal information with the applicant, the conversation can quickly delve into the applicant’s diagnosis or disability.

Questions about an applicant’s social media account information are also off-limits now in several states, such as California, that have passed legislation prohibiting employers from asking for an applicant’s social media account and password information. The California law was enacted in 2012 along with similar legislation in three other states – Illinois, Maryland and Michigan.[3] Even where requesting that information is not a violation of state law, employers should be wary of requesting and using it. Accessing an applicant’s social media accounts can provide the employer with information about the applicant’s membership in a protected class.

So, what’s the bottom line? Keep interview questions job-related. Avoid delving too far into an applicant’s past if it is not job-related and train employees – both management-level and any peer employees who may be participating in the hiring process – on hiring dos and don’ts.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Snell & Wilmer | Attorney Advertising

Written by:

Snell & Wilmer

Snell & Wilmer on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.