In the context of pre-employment inquiries which of the following is considered discriminatory

The Kansas Human Rights Commission enforces state civil rights laws which prohibit discrimination in employment on the basis of race, color, religion, national origin, ancestry, sex, disability, or age in written and unwritten policies and practices including job advertisements, benefits, demotion, discharge, discipline, harassment, hiring, layoff, maternity, promotion, recall, references, unfavorable reinstatement, involuntary retirement, suspension, terms, training, union representation and wages.
 

WHAT THE COMMISSION DOES

The KHRC administers these laws in several ways:

• Investigating allegations of unlawful discrimination in the areas of employment, housing, or public accommodations.
• Providing a third party mediation program to assist in voluntarily resolving disputes.
• Prosecuting violations of the law through the public hearing process.
• Educating individuals in Kansas about state and federal laws prohibiting harassment and discrimination.

EMPLOYEE SELECTION PROCESS
Understanding employment law is crucial for the employee selection process, as it is the goal of the employer to hire the most qualified individual, in the most equitable manner.

In order to facilitate fair and impartial interviews, the following guidelines have been prepared to help interviewers select employees on the basis of merit and job competency, exploring areas of skill, experience, and personal characteristics that relate to actual job performance.

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WHO IS REGULATED

 

Private employers Education

Government Union

UNDERSTANDING TERMS

• Employer- Anyone who does business within the state and employs four or more persons.
• Pre-employment Inquiry- includes both written and oral questions.
• Disparate Treatment or Unequal Treatment- the type of discrimination that may result when employment inquiries or requirements are not equally applied to all applicants.  For example, are all applicants in a job category asked the same questions? Are the same standards of evaluation used for every applicant?
• Disparate Effect or Adverse Impact- the type of discrimination that may result when employment inquiries or requirements screen out a disproportionate number of applicants on the basis of race, color, religion, national origin or ancestry, sex, age, or disability, unless such screening is based upon a valid business necessity, bona fide occupational qualification, or creates undue hardship for the employer.
• Business Necessity- a job requirement that is necessary for the safe and efficient operation of the organization.
• Bona Fide Occupational Qualification (BFOQ)- a job requirement that can only be met by applicants of a particular sex, religion, or national origin or ancestry.
• Undue Hardship- the nature and cost of the accommodation to be made will be considered in relation to the size, the financial resources, the nature and the structure of the employer's operation.  An employer must demonstrate undue hardship.

ADVERTISING

When advertising, an employer should:

• State that they are an "equal opportunity employer" and that all qualified applicants are encouraged to apply, regardless of race, color, religion, national origin or ancestry, sex, disability, or age.
• Advertisements for jobs traditionally stereotyped as "male" or "female" should stress that both sexes are encouraged to apply.
• Advertisements for open positions should not express an age preference unless there is a Bona Fide Occupational Qualification for the position.

BEFORE INTERVIEWING

The following tips may be helpful to ensure successful interviews of job applicants:

• Interviewing in teams saves time and allows for more objective applicant comparison.
• Know the requirements of the position.  The interview(s) should review the position description carefully to provide the job candidate with at least the following information:

• Establish employee selection criteria.  Job related criteria might include interview performance, relevant training, education and experience.
• Prepare interview questions. All questions should be job related, objective, and consistently applied to all applicants.
• Developing an evaluation system to evaluate an applicant's responses can facilitate a more effective and objective selection process.

QUESTIONS TO ASK
The pre-employment interview should elicit as much information as possible concerning the applicants potential to fulfill the requirements of the job applied for.  An objective interview provides the best perspective from which to determine the knowledge, skill, and abilities of an applicant. Some areas of questioning are relevant and necessary when exploring an applicant's qualifications for a position.  The following areas of inquiry are acceptable:

• Previous work experience
• Job related military service
• Education and training
• Authorization to work in the U.S.
• Relevant personal characteristics

PRE/POST EMPLOYMENT TESTING
In general, an employer should not use any testing or selection procedure that has an adverse impact on members of racial, ethnic, or gender groups.

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DRUGS
After an offer of employment has been made, an employer may require the applicant to submit to a drug test, as long as:

• All entering employees in the same job category face that same requirement.
• Information obtained remains confidential except to supervisors/managers, or for safety reasons.

MEDICAL
After an offer of employment has been made, an employer may require a medical examination, an inquiry, or both, as long as:

• All entering employees in the same job category face the same requirement.
• Information obtained remains confidential except to supervisors/managers or for safety reasons.

LIE DETECTOR (POLYGRAPH)
Kansas law prohibits requiring any employee or applicant to submit to a polygraph test, and from discharging, disciplining, or discriminating against an employee or applicant for refusing to take a polygraph test. However, polygraph tests may be administered, subject to certain restrictions.

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EMPLOYMENT INQUIRY GUIDELINES
The Civil Rights Act of 1964, under the provisions of Title VII, does not expressly prohibit the use of any specific interview question. However, both federal and state wage laws prohibit employers from making any pre-employment inquiry which expresses, directly or indirectly, any limitation, specification, or discrimination, because of race, color, religion, national origin or ancestry, sex, disability or age, unless based on a bona fide occupational qualification.  Information obtained through application forms or interviews is presumed to be used by the employer in making selection and assignment decisions.  For this reason, only those inquiries needed to determine an applicants eligibility for employment should be made.

For clarification of specific areas of pre-employment inquiries, the following chart has been provided:

ATTENTION! This guide is to assist employers and applicants in understanding state laws as they apply to pre-employment inquiries.  It is not intended to provide an exhaustive compilation of all acceptable and inadvisable inquiries.  The questions considered inadvisable are likely to limit the employment opportunities of persons protected by the Kansas Act Against Discrimination, and may constitute evidence of unlawful discrimination.

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