Labor & Employment Law Articles

New York State Guidelines on Pre-employment Inquiries

The New York State Human Rights Law prohibits employers from asking applicants for employment on application forms or in interviews any questions relating to the race, creed, color, national origin, sex, age, disability, marital status or arrest records of the applicant. To assist employers in complying with these aspects of the law, the New York State Division on Human Rights has issued guidelines based on its rulings in previous cases where it has determined whether certain inquiries are lawful or unlawful. Complying with these provisions of the law is important for employers because violations can constitute evidence of unlawful motive in failure to hire or discharge cases.

These guidelines are extremely helpful since they provide actual examples of questions that the Division has ruled to be either lawful or unlawful. For example, it is lawful to ask "Have you ever been convicted of a crime? (Give Details)" on an employment application. On the other hand, it is unlawful to ask, "Have you ever been arrested?". The guidelines further go on to helpfully note that an applicant may not be denied employment because of a conviction record unless there is a direct relationship between the offense and the job or unless hiring would be an unreasonable risk.

Some of the examples may take interviewers by surprise. The polite interviewer who inquires whether the applicant wishes to be addressed as Ms, Miss, or Mrs. would be violating the law since that would constitute an inquiry into marital status. An interviewer may ask for the applicant's academic, vocational or professional education but cannot ask for years of attendance or dates of graduation. An employer may ask if the applicant has a valid New York State driver's license only if a license is necessary for the position the applicant is seeking. Similarly, an employer can only ask about other languages spoken by the applicant if the duties of the position require fluency in a particular language. An employer may not ask for the name of someone to be notified in case of emergency until after the employee has been hired.

An employer may ask if the applicant is a citizen of the United Sates or whether the applicant has the legal right to permanently remain in the United States. However, an employer may not ask whether the applicant is a naturalized or native-born citizen or the date when the applicant acquired citizenship. An employer may not request that the applicant affix a photograph to the application form prior to hiring. This even includes a driver's license with a photograph.

In accord with the Americans with Disabilities Act, New York State law prohibits employers from requiring a job applicant to submit to a medical examination, including laboratory and psychological tests, as a condition precedent to employment. However, the testing of job applicants or current employees to determine whether an applicant or employee is engaging in the illegal use of drugs does not violate the Law. However, employers cannot refuse to hire applicants who are either rehabilitated substance abusers or in the process of being rehabilitated.

In order to avoid charges of unlawful refusal to hire, interviewers should take care to comply with the above guidelines. In addition, interviewers should take care that they do not write any comments on employment applications that relate to the prohibited areas of inquiry.