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When hiring a new employee, people want to know that they are making the right choice for their business. It is only natural, then, to want to get to know job applicants throughout the process. And while it is certainly important that people find the right fit for their organization, it is also important that they do so without running afoul of Oregon鈥檚 laws prohibiting discrimination.

To help people make the right decisions without asking the wrong questions, we have identified some of the categories in which employers are limited or restricted from including in their application or interview process.

Categories with considerations

Protected class status

In general, it is unlawful for an employer to discriminate against an individual based on a protected class. The protected classes specifically covered under Oregon law include race, color, national origin, religion, disability, sex, sexual orientation, gender identity, marital status, and age.

Salary history

Under ORS 659A.357, employers must refrain from seeking the salary of an applicant or employee from either the individual or from the person鈥檚 current or former employer. If a conditional offer of employment 鈥� including an amount of compensation 鈥� is made, an employer may confirm salary history at that time.

Credit history

Subject to certain exceptions, employers generally may not obtain or use the credit history of an applicant or employee for employment purposes. This restriction goes beyond the hiring process, because employers are also restricted from making employment decisions such as hiring, discharging, demoting, or suspending employees based on credit history information.

Employment status

Employers, including agents hired to assist in recruiting talent, may not knowingly or purposefully publish job advertisements that indicate a qualification of the job is current employment. Further, job advertisements may not state that the employer will not consider or review applications from individuals who are currently employed or that they will only consider or review applications from individuals who are currently employed. One significant exception to this rule is that employers may limit job advertisements when the position is available only to internal recruits.

Criminal history

Colloquially referred to as Oregon鈥檚 鈥渂an the box鈥� law, ORS 659A.030 restricts an employer from excluding an applicant from an initial interview solely because of a past criminal conviction. This restriction also encompasses exclusion of an applicant when the employer requires an applicant to disclose a criminal conviction on an application or at any time prior to an initial interview. If no interview is held, employers may not require an applicant to disclose a criminal conviction prior to a conditional offer of employment.

If a business is within Portland city limits, it may be subject to even stricter restrictions under Portland City Code 23.10.030, which contains the same restrictions outlined above but in broader scope. Portland employers may not consider an applicant鈥檚 criminal history in the hiring process until a conditional offer of employment has been made. Notably, the Portland code restricts the use of criminal history as a whole, not merely a conviction.

Crafting nondiscriminatory questions

It is important to remember that interview or application questions that do not directly address the issues discussed above may still be considered discriminatory in certain situations. If questions posed by the employer require the applicant to answer in a manner that requires divulgence of information that is otherwise protected or prohibited from consideration, even unintentionally, the employer could be at risk of legal consequences. For example, asking whether an applicant can work on Saturdays and Sundays may unintentionally be discriminatory as it could require disclosure of the person鈥檚 religion (or be viewed by an applicant as an attempt to ask about their religious practices, if any). Accordingly, it is best practice to prepare interview or application questions that are broad in scope and not intended to hint at any protected classes or information, or that may result in answers to which the interviewer does not want to know regarding protected classes.

Essential job functions

The above restrictions do not impede an employer鈥檚 ability to include or inquire about information related to an essential function of the job. Still, the most risk-averse approach would be to include any requirements of the position in the job description, rather than inquire about them in the application process. For example, rather than asking an applicant鈥檚 age, one might include in the job description that the position requires an individual to be age 18 or older. Similarly, rather than asking if an applicant is available to work on Saturdays and Sundays, one might include in the job description that working on weekends is a requirement of the role.

Takeaways

When crafting job descriptions, creating hiring policies, and engaging with applicants, employers should be mindful of the boundaries of legally acceptable considerations. Employers should carefully consider whether any of their hiring policies or practices might unintentionally rely upon or consider any of the aforementioned categories and adjust accordingly.

Sean Ray is a partner with Barran Liebman LLP. He advises and represents employers in labor and employment matters. Contact him at 503-276-2135 or聽[email protected].

Lex Shvartsmann is a law clerk with Barran Liebman LLP. She partners with attorneys in client trainings, legal research, and drafts of employment policies and handbooks. Contact her at 503-276-2111 or聽[email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.