Section 348-3-4 - PRE-EMPLOYMENT OR ADMISSION INQUIRIES1.Pre-employment or admission inquiries prohibitedA. It is unlawful employment discrimination, except when based on a bona fide occupational qualification, for any employer, employment agency or labor organization, prior to employment or admission to membership of any individual, to elicit or attempt to elicit information directly or indirectly pertaining to protected class or use any form of application for employment or personnel or membership blank containing questions or entries directly or indirectly pertaining to protected class. Pre-employment or admission inquiries covered by this section include, but are not limited to, questions asked on application forms, questions asked in employee interviews, questions asked of references or former employers, requests for photographs or any other kind of inquiry used before selection.
Examples of unlawful pre-employment or admission inquiries may include, but are not limited to, the use of the following inquiries:
(1) NAME. Where original name of applicant has been changed by court order, inquiries that could indicate or suggest religious group or national origin or ancestry or gender identity by requesting any former names, including maiden names, ever used by applicant; names or former names of spouse, parents or other relatives.(2) BIRTHPLACE. Requirement that applicant submit birth certificate or baptismal record, which could indicate religious denomination, national origin or ancestry. Inquiries into the place of birth of applicant, spouse, parents or other relatives could indicate national origin or ancestry.(3) CITIZENSHIP. Whether applicant is native born or naturalized citizen; country of former citizenship or date of naturalization; citizenship of spouse, parents or other relatives. Nothing in this chapter, however, precludes an employer from asking questions necessary to comply with the Immigration Reform and Control Act of 1986.(4) NATIONAL ORIGIN OR ANCESTRY. Nationality, lineage ancestry or descent of applicant, spouse, parents or other relatives; language commonly used by applicant, or how applicant acquired ability to read, write or speak a foreign language.(5) MILITARY SERVICE. Applicant's military experience in armed forces, other than U.S., draft classification or other military eligibility, which could indicate national origin or ancestry.(6) RELIGION. Applicant's religious denomination, affiliation, church, parish, pastor, or religious holidays observed; representing to applicants that employer is of a predominant or particular religious orientation.(7) EDUCATION. Inquiry asking specifically for the religious affiliation of applicant's school.(8) REFERENCES. Requirement of submission of a religious reference.(9) WORK SCHEME. Any inquiry into willingness to work any particular religious holiday.(10) ORGANIZATIONS. Request a list of all clubs, social fraternities, societies, lodges, or organizations to which the applicant belongs, other than trade, professional or service organizations.(11) HOUSEHOLD COMPOSITION. Requesting information about an applicant's living arrangements or family members.(12) MEDICAL HISTORY. Any inquiry as to whether or not an applicant has received gender-affirming physical and/or behavioral health care.(13) COMPENSATION HISTORY. Making inquiries of prospective employees or their current or former employers regarding the prospective employee's compensation history before an offer of employment that includes all terms of compensation has been negotiated and made to the prospective employee.(14) CRIMINAL HISTORY. Making inquiries about an applicant's history of arrests. Employers may ask about convictions and/or pleas of nolo contendre.(15) HAIR STYLE/APPEARANCE. Making inquiries about an applicant's hair style/appearance when the hair style/appearance is associated with the applicant's protected class status (i.e., Afro styles or protective hair styles, such as locks, twists, and braids).B. It is unlawful employment discrimination for an employer, employment agency or labor organization to request information from a member of one protected class that would not be requested from a member of another, e.g., one cannot ask older applicants questions concerning how long they expect to remain in the workforce if the employer does not ask the same questions of younger applicants.C. It is unlawful employment discrimination to deny equal consideration for employment, promotion or any other term, condition or privilege of employment or membership in a labor organization because that person refused to answer a pre-employment or admission inquiry if that inquiry is prohibited by this chapter and the Act.2.Pre-employment or admission inquiries permittedA. Pre-employment or admission inquiries that are made in conformance with the instructions from, or requirements of, an agency or agencies of the local, state or federal government in connection with the administration of fair employment practices programs will not constitute evidence of unlawful employment discrimination under the Act.B. It is not an unlawful employment practice to record any data required by law, or by the rules and regulations of any state or federal agency, provided such records are kept in good faith for the purpose of complying with law, and are not used for the purpose of discrimination in violation of the Act.C. Subsequent to employment or admission to membership, it is not unlawful employment discrimination to make a record of such information or features concerning an individual as are needed in good faith for the purpose of identifying that individual, provided these records are intended for and used in good faith solely for such identification, and not for the purpose of unlawful discrimination in violation of the Act. Records of features regarding physical or mental disability that are collected must be collected and maintained on separate forms and in separate files and be treated as confidential records.D. Physical or mental disability. A covered entity may make pre-employment or membership inquiries as permitted by § 13(3) of this chapter.