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You can't ask somebody about their marital status, for the exact same reason you should not be able to ask about credit history. It's not relevant to the ability to do the job.
Some who say we must curb employers' use of job applicant's credit scores argue that one's credit history should be a protected characteristic under antidiscrimination laws for the same reasons that certain other characteristics such as religion or marital status are protected. They aren't relevant to job performance, and moreover, they are personal matters that are none of an employer's business.
Last session's bill to protect credit history under the Minnesota Human Rights Act was sponsored in the house by Rep. Phillip Sterner. He has heard the argument before that a job applicant who is financially responsible in his personal life is likely to be a dependable employee, and doesn't buy it. "You could use that argument for almost any of the other types of discrimination you do. You could say, I want to hire someone of a certain religion, because I know that person goes to church every Sunday, so they're going to be more reliable than somebody who doesn't go to church," Sterner says.
A credit score should be off limits to an employer for the same reason an employer is not allowed to ask about marital status, says Nicholas Slade. "You can think circumstances where somebody has been married and divorced four times. That might certainly point out some questionable personal skills. But you can't ask somebody about their marital status, for the exact same reason you should not be able to ask about credit history. It's not relevant to the ability to do the job."
That assertion will remain in dispute, with many arguing that credit history is relevant — to at least some jobs. Whether the value of information gained through credit checks and an employer's alleged need to obtain it outweighs the potential consequences for individuals saddled with poor credit is not likely to be decided in Congress this year. But the EEOC has signaled a new determination to challenge employers' use of credit information as discriminatory in its lawsuit against Kaplan — this is only the third time that the EEOC has sued a company for misusing credit data. The issues raised as the EEOC moves ahead with the suit, and Kaplan defends its practice as a matter of business necessity, will at least be instructive, and could change employer practices for years to come.
Note: The information in this section appeared in the Winter 2011 edition of the Department of Human Rights newsletter, The Rights Stuff. The newsletter includes additional material related to this topic.