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Employers in New York City Should Be Cautious During Interviews and Not Ask Questions That Might Be Construed as Discriminatory

Most ‘no-no’s during the interview process are situation-specific, and nuanced. What follow are general prohibitions to be mindful of.

• Don’t ask for a job candidate’s salary history or what salary they earned at prior jobs.

To address pay inequality, New York City has passed legislation that prohibits inquiry into salary history. Employers are allowed, however, to ask what the employees’ salary expectations are, and of course, employees can voluntarily disclose their salary histories to their prospective employers.

• Be careful when enquiring into criminal history of a job candidate.

Generally, employers (in New York City and State) may not not enquire
about criminal history until after the job offer is made. As per the guidance set forth by the New York City Commission on Human Rights:

“After a conditional offer, an employer may ask an applicant if s/he has any history of convictions. An employer may also ask about the circumstances that led to any conviction, including the arrest leading to the conviction and original charges, to determine how serious the applicant’s conduct was. However, an employer may never ask about arrests that did not lead to convictions; convictions that were sealed, expunged, or reversed on appeal; convictions for violations, infractions, or other petty offenses such as “disorderly conduct;” resulted in a youthful offender or juvenile delinquency finding; or convictions that were withdrawn after completion of a court program. The following is an example of a permissible question after a conditional offer:

Have you ever been convicted of a misdemeanor or felony? Answer “NO” if (a) you have never been convicted of a misdemeanor or felony; (b) the misdemeanor or felony was sealed, expunged, or reversed on appeal; (c) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (d) resulted in a youthful offender or juvenile delinquency finding; or (e) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.”

Are there positions for which employers may enquire about criminal history before a job offer is made? Yes–

• If employers hiring for positions where federal, state, or local law requires criminal background checks or bars employment based on certain criminal convictions.

• If the job candidate has applied for positions involved in working with vulnerable people at the state Department of Health, state Office of Mental Health, and state Office of People with Developmental Disabilities.

• If employers in the financial services industry are complying with industry-specific rules and regulations promulgated by a self-regulatory organization.

• If the job candidate is applying for a job with the following New York City agencies: the New York City Police Department, Fire Department, Department of Correction, Department of Investigation, Department of Probation, the Division of Youth and Community Development, the Business Integrity Commission, and the District Attorneys’ offices in each borough.

• If the job candidate is applying for New York City positions designated by the Department of Citywide Administrative Services as involving law enforcement, is susceptible to bribery or other corruption; or entails the provision of services to, or the safeguarding of, people vulnerable to abuse.

Of course, regardless of the above exemptions, an employer can deny an applicant employ if there’s a direct relationship between the criminal record and the prospective job, or the employer can show that hiring the applicant would involve an unreasonable risk to property or to the safety or welfare of specific individuals, or the general public.

• Refrain from questioning job candidates about payment history or credit worthiness, credit standing, or credit capacity. That includes credit card debt, child support, student loans, a foreclosure, missed or late payments, bankruptcies, judgments, and liens.

Are there exceptions to this rule? Yes, you may make such inquiries when interviewing for positions in which credit checks are required by law, police and peace officers, and high-level positions involving trade secrets, financial authority, and information technology.

• Avoid questions about pregnancy, about plans to have children, about whether or not the spouse is employed, and child-care responsibilities.

Questions in this category can place the employer at risk of gender discrimination, pregnancy discrimination, disability discrimination, and caregiver discrimination. That does not mean the employer cannot be up front about the requirements and demands of the job, so that those who are not a good fit for the position, can take themselves out of the running.

• Refrain from asking about a job candidate’s religion and how that would impact their ability to work specific days of the week, or times of the day.

Employers are prohibited from discriminating against individuals on the basis of religion. In New York City, employers must accommodate employees’ religious beliefs (such as attending religious services) unless it causes the employers an undue hardship.

• Don’t ask about a job candidate’s recreational activities.

The Off Duty Conduct Law prohibits employers from refusing to hire a candidate because of that individual’s outside recreational activities, if those activities: are pursued off the employer’s premises; fall outside work hours; are pursued without the employer’s equipment; and are lawful. This is not to say that employers are prohibited from asking candidates what they do for fun or what their interests are. These are certainly appropriate interview topics. But employers should be wary about openly reacting in a negative manner, to the candidate’s lawful recreational activities, and then basing a decision not to hire on the same.

• Don’t ask about a candidate’s age, or when he or she graduated from high school.

Discrimination is prohibited on the basis of age, and younger workers are protected from age discrimination as well, so avoid questions during the interview that would cause a job applicant to reveal his or her age.

Some jobs may have minimum age requirements, however—to comply with a law or for insurance purposes. In that case, you may ask whether the applicant meets the minimum age requirements.