Published on May 6th, 2011 by Alan L Sklover
Question: Can a prospective employer tell me they will only hire me if I already have health insurance? Can they ask if I smoke, if so, how much a day, and if I suffer any health problems as a result? Can they ask me if I bought my home, how did I get a mortgage, and if I purchased it by cash, from where were those funds derived?
Terre Haute, Indiana
Answer: Dear Beth:
As you probably know, I am not licensed to practice law in Indiana. However, based on a brief review of Indiana law, and my almost 30 years of experience, I believe the answers to your questions are all “Yes.” Let me explain:
1. Employers cannot refuse to hire people based on certain criteria or categories; all other criteria and categories are permissible. Though the law in different states say slightly different things, in general the law says that an employer cannot refuse to hire people based on their age, gender, religion, race, nationality, disability and a few other categories, such as sexual orientation in certain cities and states. However, it is entirely legal to refuse to hire based on a person’s height, whether a person can use a computer, whether a person has big ears, and thousands of other criteria. Many people believe – mistakenly – that any kind of “discrimination” is illegal. They are wrong; only certain types of discrimination are illegal.
2. For an employer to be held legally accountable for any question(s) asked in an interview, the questions have to be reasonably connected to an impermissible “criteria or category.” So, it can be considered illegal discrimination to ask a prospective employee: (a) if she practices a certain religion; (b) what his racial background is, or (c) if a woman plans to have another child. Such questions give rise to an inference of illegal discrimination. Whether you enjoy reading mystery novels would not seem to be connected to illegal discrimination.
I can’t imagine what might motivate an employer to ask a job applicant questions about mortgages on homes, or the sources of a down payment to purchase a home. I don’t, though, see any connection with such questions and illegal criteria or categories.
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3. Employers are particularly permitted to ask questions that appear to have a “business” reason behind them. Almost everywhere, Courts are increasingly approving of job interview questions that have some bearing on a “business reason” to hire, or not to hire, a prospective employee. Since people who smoke cigarettes – especially a lot of cigarettes – get sick more often than do non-smokers, employers are considered to have a valid business reason to ask questions about those topics. The same might be for those who have health insurance: it might be considered at least rational to believe that such people are more likely to visit doctors and get medicines when they get sick, and thus be out of work less for sick days.
It is true that in many states, laws are being passed to limit the ways that employers can invade employees’ privacy. These do not seem to violate those kinds of new laws.
As I noted above, Beth, it would seem to me that the questions asked of you at your interview, while unusual, are probably not illegal.
Thanks for writing in. Hope this has been helpful.
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