By Joel A. Klarreich, Esq., of Klein Heisler & Klarreich, P.C.

Under New York State law and under policies recently enunciated by the Federal government, charges of discrimination may be filed by “testers” or based upon information obtained by “testers.” It is easy to identify the blatantly discriminatory job orders and improper interview questions. What about the subtle? Take the test below to see how you fare.

Which of the following statements made in giving a job order or noted on a job order are discriminatory?

1. Buddy-we’re lookin for a couple of sales reps. You could handle fellas like that?

2. We do a background check-we will not hire any one who has been arrested.

3. Please, no bargains. I don’t want anyone coming down from $100M for this $50M position. When the economy turns, they’re history.

4. We have an affirmative action program in place. To support this, we prefer a minority secretary. However, this is only a preference-she need not be a minority.

5. In view of the salary, and to get the quality we want, we feel that one to two years experience is about right.

6. We are the Catholic Archdiocese, we need a Catholic secretary.

7. Our firm produces kosher food, we must have a Jewish salesperson.

8. We need a bilingual secretary-French/English-native to France because of idioms, etc.

9. No accent.

10. Front desk appearance.

11. Young Dept.-Applicant must fit in.

12. Corporate Type.

Which of the following questions, if asked of a job applicant in an interview are improper?

13. What is your maiden name or what was your name before you changed it?

14. What is your husband’s name? Do you plan to start a family?

15. Do you have a clean credit history?

16. What is your native language?

17. What army did you serve in?

18. Can you get around on your bad leg?

19. What clubs do you belong to?

20. Who should we call in case of an emergency?


1. Questionable. This could be sex discrimination as the term “fellas” could be deemed to be requesting men only.

2. Discriminatory. You may not inquire as to whether or not an applicant has ever been arrested, only whether or not they have been convicted of a crime. Convection information may only be used as a basis for employment related decision if job related.

3. Possibly discriminatory on basis of age.

4. Discriminatory. This is a classic entrapment question. You may not refer to candidates solely by he or she. Further, to not be discriminatory, company must agree to accept all applicants, not just minorities.

5. Discriminatory. A request for one or two years experience is discrimination on basis of age.

6. Not discriminatory. A bona fide religious organization may limit employment to or request preference to persons of the same religion.

7. Discriminatory. A private concern producing kosher food is not a religious or denominational institution.

8. Discriminatory on the basis of national origin.

9. Questionable. Good diction may be a requirement for job applicants only if job related.

10. Highly questionable. There is no clear cut definition of front desk appearance. If the job requires an attractive/handsome, well dressed/well groomed applicant, it should so state.

11. Discriminatory on the basis of age.

12. Questionable. Could be age, religious or color discrimination.

13. Improper pre-employment inquiry.

14. Improper pre-employment inquiry. Indicates sex or marital status discrimination.

15. Improper unless a financial position, as this could have a disparate impact on minorities.

16. Improper. You may only inquire what languages the person speaks, not what is their native language.

17. Improper. You may only inquire about U.S. Army experience. Inquiry about other army experience is improper as it could represent inquiry into a person’s national origin.

18. Questionable at best. Questions concerning disability are only permissible if job related and then only as to ability to preform the essential functions of the job.

19. Improper. It is only proper to inquire as to clubs or organizations that are job related.

20. Improper pre-employment inquiry according to specific state regulation.

The next several years will probably see a resurgence of scrutiny of the private placement industry. In addition, various groups will be posing as testers and will submit job orders, or pose as job applicants. If you or your staff did not fare well on this test, further EEO training and awareness is in order. Do not allow inadvertence and carelessness to result in unfounded charges of discrimination.

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