Prohibited Pre-Employment Practices
The Minnesota Human Rights Act, and Minnesota Statutes, section 363A.08, subd. 4(a), provides it is an illegal, discriminatory employment practice for an employer — before a job applicant is hired — to require or request the person to furnish information that pertains to the following: race, religion, national origin, public assistance, sex, color, marital status, sexual orientation, age, creed, or disability.
This prohibition includes pre-employment information sought or obtained by any of these means:
- Application form
- Job interview
- Physical exam/health history
- Third-party sources, e.g., prior employer, employment agency or background check
Limited, narrow exceptions exist for a Bona-Fide Occupational Qualification (BFOQ), affirmative-action tracking and selection information (which must be maintained separately from the employment application), national security or pursuant to state or federal rule, regulation or law.
The Human Rights Act also prohibits indirect inquiries and considerations related to race, sex, age, color, creed, public assistance status, sexual orientation, national origin, disability, religion and marital status. Such inquiries, in and of themselves, may lead to violation of the Act and may be the basis for a Commissioner's charge. Their use may also lead a job applicant to file a charge or a private lawsuit, in the belief that the employer's other employment practices, including the ultimate failure to hire that applicant, are discriminatory.
Pre-employment requests for information regarding the identity of relatives must explicitly exclude identification of marital status. General questions about an applicant's relatives working for the employer are either likely to elicit prohibited information (when the space allowed for indicating "yes" or "no" is so large that it invites a more detailed response, possibly identifying a spouse) or useless (the limited value of a "yes" response, if you do not know, and should not speculate-in the case of spouses identity of the related employee).
Pre-Employment Inquiries and Citizenship
Asking whether an applicant is a U.S. Citizen during a job interview is generally prohibited. The federal Immigration Reform and Control Act of 12986 (IRCA) makes it illegal for employers to discriminate based on a person's citizenship or immigration status during hiring, firing, recruitment or referral for a fee. More about IRCA on the EEOC web site.
To determine the person's capability to perform available employment, an employer may legally request or require a physical examination, which may include a medical history, provided all the following elements are met:
- An offer of employment has been made, on the condition that the person meets the physical or mental requirements of the job (except: a law enforcement agency filling a peace officer position may require a psychological examination prior to a job offer);
- The examination tests only for essential, job-related abilities;
- The examination, except for Workers' Compensation Act-related exams, is required of all persons conditionally offered the same position, regardless of disability; and
- The information obtained is collected and maintained separately and is treated as a confidential medical record, subject to limited access, for purposes enumerated at §363A.20, subd. 8.
Any person who is illegally required to provide health-related or other prohibited information is an aggrieved party. §363A.08, subd. 4(b)
Employers may administer non-medical, pre-employment tests to job applicants, without first making a conditional offer of employment, provided all the following elements are met:
- The tests are required of all applicants for the same position;
- The tests measure only essential, job-related abilities; and
- The tests accurately measure aptitude or achievement, rather than reflecting an applicant's impaired sensory, manual, or speaking skills, except when those skills are the factors the tests are designed to measure.
Timing an applicant's performance of a job-related task would be a non-medical test, however, measuring an applicant's physiological state — such as blood pressure or heart rate — following a performance test, would likely constitute a medical or physical examination.
The Minnesota Supreme Court has held that each allegedly disqualifying disability must be examined on an individual basis, with regard to the degree of the disability, current medical condition of the employee and the nature of the position sought.
To be considered are both the possible severity of the consequences if an accident occurred, and the likelihood of an accident occurring, and the employer must rely upon competent medical advice. An employer may claim that having a specific, disability-related characteristic, such as history of heart disease or seizure disorder, absolutely disqualifies job applicants with that characteristic.
When relying upon this "bona fide occupational qualification" exception, the burden is on the employer to present a factual basis to establish that all or substantially all persons so affected would be unable to safely and efficiently perform the required job duties.
Health Care Records & Medical Information
If any health care records or medical information adversely affect any hiring, firing, or promotional decision concerning an applicant or employee, the employer must notify the affected party within ten days of the final decision. Information on an applicant or employee's medical history or condition must be collected and maintained on separate forms and kept in separate medical files, and is to be treated as confidential materials, with access limited to those persons needing the information for purposes relating to necessary restrictions and accommodations; firstaid safety, if disability might require emergency treatment; government inquiries; and release mandated by law; provided that the results of the examination are used only in accordance with the Human Rights Act.
Employment and applicant records must be retained for at least one year after the records are made.
Use of Information from Overbroad Medical Inquiries
The Minnesota Supreme Court, in Huisenqa v. Opus Corp., et al, 494 N.W. 2d 469 (Minn. 1992), recognized that employer inquiries, which are not tailored to the requirement of the job in question, are not permitted under the Minnesota Human Rights Act. (MHRA) The Huisenga case was brought under the state's workers' compensation statutes, and the Court's decision centered around its interpretation of the MHRA. The court, in its decision, stated:
Today, we address the question of whether an employer may avoid paying benefits when a job applicant or employee makes a false representation regarding health or physical condition in a response to a question posed by the employer which requests health and medical information unrelated to the tasks of the job and it thus is prohibited by the Minnesota Human Rights Act...
Lund Martins' inquires regarding prior worker's compensation claims of an employee or applicant also stray from the mark. We do not see how asking if an employee or applicant has ever received workers' compensation benefits can survive the requirements of the MHRA. A person could have been previously injured in the workplace in a fashion completely irrelevant to the requirements for the job in question. Yet, the questionnaire clearly asks an applicant or employee to divulge information regarding not only the claims, which go to the essence of the job, but also those which do not. Probing into the health history and disabilities of an applicant or employee in this fashion is not permitted under the MHRA unless the inquires are tailored to the requirements of the job in question. The general nature of the question indicates that no such tailoring effort was made here...
The MHRA could not be more clear in stating that questions regarding health and disability may only be asked if they test essential job-related abilities. These did not. Furthermore, we believe that overreaching invites deceit...
When making inquiries of job applicants or employees, employers may do so only in methods which comply with the provisions of the MHRA. If they stray from the mandates and prohibitions of the MHRA, their reliance on the resulting information is from apoisoned tree...
The Huisenqa decision holds that discrimination will be found to have occurred when improperly requested information, either obtained by or withheld from an employer, becomes a factor in a subsequently made, adverse employment decision concerning the job applicant or employee. Such discrimination is distinguished from the violation of making the improper request, itself.
In some instances, particularly in filling supervisory or confidential positions, an employer may be able to justify not hiring an individual whose spouse is already working for that employer. These are narrow exceptions, however, and an employer needlessly exposes itself to discrimination charges or litigation when such information is routinely requested, without regard for the position being filled or the stage of the hiring process at which the information is sought. Although it is generally advisable that an employer drop the question, each employer may anticipate the potential value and legal consequences, respectively, of its use.
Employers cite difficulties in verifying background information, without requesting women to furnish a birth name. A "maiden" name inquiry singles out women (men, too, may legally change their names); it also may reveal a woman's marital status. If it is necessary to pursue this information at such an early stage in the hiring process (which, in practice, seems unlikely), all applicants may be requested to indicate any other name/s by which former employer/s, schools or branch of military service, named on the application, would identify the applicant.
Arrest and Criminal Records
Courts have held that barring job applicants because of an arrest and/or criminal conviction record may have a statistically significant, adverse impact on members of racial or ethnic minority groups. An employer's hiring policy regarding criminal convictions may be held to be discriminatory when, absent a bona fide occupational qualification, a minority-group member's criminal conviction record is an absolute bar to employment, provided that a statistically significant adverse impact is shown within the protected class.
Within this context, the recency and job-relatedness of any conviction must be considered by the employer before making an adverse hiring decision relating to criminal record. It is generally advisable that employers inform job applicants, at the time of application, that these mitigating factors will be considered; an employer's failure to do so may have a chilling effect on job applicants pursuing a job with that employer, which may prove to be discriminatory.
"Ban the Box"
In 2013, Governor Mark Dayton signed a bill expanding the "Ban the Box" law to private employers that will go into effect beginning Jan. 1, 2014. "Ban the Box" has applied to public employers in Minnesota since 2009. (Minn. Statutes 364.021.)
The law requires public, and now private, employers to wait until a job applicant has been selected for an interview or conditional offer of employment has been extended before asking a job applicant about criminal records or conducting a criminal record check. This law offers the vast majority of individuals with a non-violent criminal record a second chance at an opportunity for employment to better their lives.
Existing laws will continue to protect vulnerable adults and children from people with violent or sexual criminal histories. Additionally, employers may exclude applicants if a crime is relevant to the position's job duties.
More on Criminal Background Checks here.
The practice of conducting credit history checks, per se, is not discriminatory. However, credit checks on applicants may prove problematic. Applicants' credit records could reveal marital status, date of birth or public assistance status. Rejecting applicants on the basis of poor creditworthiness or history could have a disproportionate, adverse impact on applicants who received public assistance, or who are of particular races or marital status.
It may be that a credit check is only done on individuals being offered certain jobs, such as fiscal positions, where money-handling is an essential job function. An employer may need to justify such inquiries, and it may want to minimize its exposure, should the practice occur and then be challenged.
Neutral Practices and Adverse Impact
If a facially neutral employment practice (one that does not appear to be discriminatory on its face) is challenged, and it is shown to have a statistically significant, adverse impact on a particular group within a protected class, an employer must justify that practice by demonstrating that it is manifestly related to the job or significantly furthers an important business purpose. If this justification is established, the practice may still be discriminatory if it is demonstrated that there is a comparably effective practice which would cause a significantly lesser adverse impact on people of the identified protected class status.