Per compliance with Title VII of the Civil Rights Act and with ADA, employers want to avoid application questions and interview questions that directly identify a person as a member of a protected group. Even questions that appear neutral on their face can be illegal if the question results in a disproportionate screening of members of a protected group or is not a valid predictor of job performance.
The excerpt below taken from Les Rosen's new book The Safe Hiring Manual 3rd Edition is a discussion of how employers and screening companies can avoid discrimination lawsuits when dealing with someone who has changed their name such as through marital status. We thank Mr. Rosen for allowing us to reproduce this text below.
The excerpt below taken from Les Rosen's new book The Safe Hiring Manual 3rd Edition is a discussion of how employers and screening companies can avoid discrimination lawsuits when dealing with someone who has changed their name such as through marital status. We thank Mr. Rosen for allowing us to reproduce this text below.
How to Avoid Previous Names and Marital Status Discrimination
One of the areas where the discrimination laws have an effect on safe hiring is the use of previous names in a criminal search. The issue arises because past names are a necessary identifying piece of information. For example, when searching for criminal records, researchers base the search on the last name. However, if an applicant at one time was known by a different name, a complete criminal search must be conducted under BOTH names. The most typical situation is in the case of a woman who has married and changed her name.
The problem is that by referring to a name as a maiden name, an applicant potentially is being identified on the basis of their marital status or sex, which can be a violation of federal and state discrimination laws. In California, for example, asking for an applicant's maiden name has been specifically labeled as an unacceptable question by the California Department of Fair Employment and Housing, the California agency charged with enforcing the California civil rights laws. Consequently, a previous name search should not be referred to as a "maiden name" search, since that clearly indicates that an employer is obtaining information on marital status, which is a prohibited basis upon which to make an employment decision. That is why any application or consent for background screening should always include the phrase "previous name" instead of "maiden name."
Is this an example of a distinction without a difference or political correctness going too far? No. Marital status has been a traditional basis for a woman to be the subject of discrimination. The fact is that whether a man or woman is married is simply not a valid basis to predict job performance. However, the reality has been that a woman applicant who is married may be the subject of discrimination based on a belief that she may leave the job to have a family. By phrasing it as a "previous name," the same information is obtained for purposes of a background check, but the application information is facially neutral. In addition, a female applicant is not discouraged from applying based on an apprehension that by asking for a "maiden name" there is a likelihood of discrimination.
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