Pre-Employment Inquiry Guide

Introduction

In Michigan, the Elliott-Larsen Civil Rights Act

(ELCRA) MCL §37.2206, and the Persons with

Disabilities Civil Rights Act (PWDCRA) MCL

§37.1206 provide significant guidance to

employers in the hiring process. In addition,

this guide includes the requirements of Title

VII of the Civil Rights Act of 1964, 42 USC §§

2000(e) et seq.; Title I of the Americans with

Disabilities Act, 42 USC §§12101 et seq.; the

Age Discrimination in Employment Act, 29 USC

§§ 621 et seq.; and the Immigration Reform

and Control Act of 1986, 8 USC §§ 1324a et

seq.

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Recruitment

The referenced federal and state laws make it

unlawful for an employer to print, circulate,

post, mail or otherwise cause to be published

a statement, advertisement, notice or sign

which indicates a preference, limitation and/or

specification based on religion, race, color,

national origin, age, sex, height, weight,

marital status or disability. Employers are not

prohibited from including statements that

affirm equal employment opportunity.

Pre-Employment Inquiries

Except as permitted by the Michigan Civil

Rights Commission (MCRC) Rules or by federal

law, these statutes make it unlawful for an

employer or employment agency to ask

questions, orally or in writing, that elicit

information, try to elicit information, or

express a preference on the basis of race,

color, religion, national origin, age, sex,

height, weight, marital status, or disability of a

prospective employee. These laws are not

intended to interfere with an employer’s right

to hire qualified persons; rather, they prevent

characteristics which are not job-related (such

as race, sex, marital status, etc.) from

influencing the selection process.

Job Description

One way to ensure sound hiring procedures

and avoid unlawful discrimination is for

employers to write job descriptions outlining

the required skills and abilities for each

position. Focusing on the individual’s skills and

specific job requirements helps employers

select the most qualified candidate.

Requests for information that are unlawful

pre-employment may be legal once the

applicant is hired, such as information needed

for payroll and benefit processing (marital

status, number of dependents, etc.). However,

the information should not be requested on

the employment application or during the

interview.

Arrest Records

Under Michigan law, employers may not ask

an applicant about a misdemeanor arrest that

did not result in a conviction. Employers may

ask about felony or misdemeanor convictions

or felony arrests which did not result in a

conviction. Some employers are required to

conduct criminal history background checks on

potential hires. However, unless required by

law, it is a violation of Title VII of the US Civil

Rights Act for employers to have a blanket

policy of not hiring or accepting applications

from anyone with a criminal conviction.

Data Collection

Under limited circumstances, employers may

be required to gather information that might

otherwise be unlawful under the ELCRA and

the PWDCRA. Documentation required by the

Immigration Reform and Control Act, 8 USCA

§§ 1324a et seq, and criminal history

background checks required for applicants in

certain occupations all require gathering

otherwise prohibited data. Employers must

use care to gather ONLY the information

required by the controlling statute or

regulation, restrict access to this information,

and require collection only after the employer

has made a conditional offer of employment.

Bona Fide Occupational Qualification

Employers can request an exemption from

Michigan civil rights law if they can show that

religion, national origin, age, height, weight or

sex is a bona fide occupational qualification

(BFOQ) that is necessary to normal business

operations. Employers can ask the MCRC for a

BFOQ before posting a position. If a BFOQ is

not requested and the employer is later

charged with discrimination, the employer can

raise BFOQ business necessity as a defense to

the charge. For example, a juvenile detention

facility concerned with the privacy of the

youth may request hiring one person per shift

of the same sex as the facility residents.

EEO/Workforce Diversity Plans

Equal Employment Opportunity (EEO) and

workforce diversity plans are permitted to

require the aggregate collection of data on

race, religion, color, national origin, sex or

disability of applicants and employees as long

as the data is separated from hiring or

promotional processes.

To file a complaint, or to ask questions contact

1/800.482.3604 or TTY 1/877.878.8464. You

can also file online:

www.michigan.gov/mdcr

Revised 6/2012 – web only

Pre-Employment

Inquiry Guide

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What can employers ask before

hiring someone in Michigan?

What is illegal?

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

Only Fair Is Fair.

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Pre‐EmploymentInquiryGuide

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Subject  LawfulPre‐EmploymentInquiries UnlawfulPre‐EmploymentInquiries

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AddressApplicant’scurrentandprior addresses

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Age  Areyou18orolder?Applicant’sageordateofbirth

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Arrests Haveyoueverbeenconvictedofacrime?  Misdemeanorarrestswhichdidnotresult

Haveyoueverbeenarrestedfora

felony? inconviction

unlessapplicantisseekinga

positionwithalawenforcementagency

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Birthplace Birthplaceofapplicantandapplicant’srelatives;

birthcertificate,naturaliza tionand baptismal

records,unlessrequiredbyfederallaw

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Citizenship Areyoulegallyauthorizedtoworkinthe Thesequestionsareunlawfulunlessaskedas

UnitedStates?partoftheFederalI‐9process

iii

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a.) Ofwhatcountryareyouacitizen?

b.) Areyouanaturalizedornative‐borncitizen?

c.) Areyourparentsorspousenaturalizedor

native‐borncitizens?

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Disability Abilitytoperformtheessential  Physicalormentalconditionswhicharenot

functionsofthejobwithorwithout directly

relatedtotherequirementsofa

accommodation

specificjob

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Education Applicant’sacademic,vocationalor

professionaleducationandschools

attended

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GeneticTestingApplicant’sgeneticinformation;requiring

applicanttoundergogenetictesting

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HeightorWeight Applicant’sheightorweight

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MaritalStatus Maritalstatusorchildren;titlessuchasMr.,

Mrs.,orMs.

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Name  Applicant’sname;othernamesused Applicant’smaidenname

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byapplicant

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NationalOrigin Languagesspokenandwrittenby Applicant’slineage,ancestry,nationaloriginor

applicantnationality(seenoteiibelow)

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NoticeinCaseof Name,addressandphonenumberof Name,addressandphonenumberofrelative

Emergency persontobenotifiedincaseofaccident tobe

notifiedincaseofaccidentoremergency

oremergency

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Organizations Theorgani zationsandclubstowhich Namesoforganizationstowhich anapplicant

applicantbelongsexceptasnotedin  belongsIFinformationwouldrevealtherace,

thecolumntotherightcolor,religion,nationaloriginorancestryofthe

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membersoftheorganization

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Photograph Applicant’sphotographpriortohire

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RaceorColorApplicant’srace,nationalor igin orcolor 

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ReligionReligiousdenominationoraffiliation;religious

holidaysobserved

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SexApplicant’sgender;abilityordesiretohave

children;childcarearrangements



UnlawfulunderMichiganlawonly,notcoveredbyfederallaw

DocumentsrequiredbytheImmigrationReformandControlAct(IRCA),8USCA§§1234aetseq.,mayonlybecollectedaftera

conditionalofferofemploymenthasbeenmade

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TheIRCAmandatesthatemployersverifycitizenshipandworkauthorization,butonlyafteraconditionalofferofemployment

Thisquestionisonlylawfulifapplicanthasbeeninformedoftheessentialjobfunctions