When hiring a new employee for your organization, it’s smart to have a local attorney review your employment application to confirm it complies with state and federal employment laws. It’s also good to know the questions you may legally ask people during a job interview—and which ones to avoid. Keep in mind that some questions you aren’t allowed to ask job applicants may be okay to ask people seeking unpaid or volunteer work. Ask a lawyer to be sure.
Here are 6 categories of questions to discuss with a local attorney before using in an application or interview. Proceed with caution before asking about a person’s:
Health and medical conditions
Traits or tendencies
1. Health and Medical Conditions
Be careful when asking questions related to a person’s health and medical conditions. This holds true on a number of levels. First, avoid violating the federal Americans with Disabilities Act (ADA). The ADA allows an employer to ask disability-related questions and require medical exams of a job applicant only after the applicant has been given a conditional job offer. An organization may be subject to the ADA if it employs 15 or more people. This article from the Equal Employment Opportunity Commission provides additional guidance about making pre-employment inquiries into medical issues.
Questions about mental health diagnoses or treatment can be tricky, as well. Such queries could be seen as an illegal attempt to gain information about a person’s disability or to discriminate against people with mental illness.
Rather than asking applicants about mental health diagnoses or past issues with addiction, consider developing drug and alcohol policies that you require all employees and volunteers to sign. Such policies would generally prohibit a person from being under the influence of alcohol or illegal drugs while working or volunteering with your organization.
Your state may have additional laws governing what an employer may ask about a job applicant’s disabilities, mental health, and past drug or alcohol use. It’s always wise to consult with a local attorney before diving into these waters.
2. Criminal Record
If state law permits, some employment and volunteer application forms ask whether a prospective worker has ever been convicted of—or pleaded guilty or no contest to—any criminal offense. The answer to this question may alert the organization to further evaluate an applicant’s suitability to serve in various ministries. By asking this question, employers can determine if additional information is necessary to make an informed decision about whether or not a prospective worker poses a threat to others.
Important note: Federal law doesn’t bar employers from asking about criminal history during the application process, but it does prohibit employers from discriminating when they use criminal history information to make employment decisions.
State laws differ. Many states have laws specifying what you can—and can’t—ask about a job applicant’s criminal history. For example, some states won’t allow you to inquire about criminal convictions that have been expunged, sealed, or deleted from court records. Others have adopted “ban-the-box” legislation that prohibits you from asking criminal history questions until after a conditional job offer has been made. Failing to comply with this type of state or local requirement could lead to lawsuits or fines.
Check with a local attorney to determine what types of criminal history questions your city and state allows employers to ask during the job application and interview process.
3. Abuse or Sexual Misconduct
Find out if your state allows employment and volunteer application forms to ask about sexual misconduct claims. Generally, the form would ask if a prospective worker has ever participated in (or been accused, convicted, or pleaded guilty or no contest to) abuse or any sexual misconduct. This question communicates the ministry organization’s concern regarding a prospective worker’s past record with sexual misconduct, regardless of whether that misconduct resulted in criminal prosecution or conviction.
4. Traits or Tendencies
Another question for your local attorney is whether you’re allowed to inquire about the traits or tendencies of people who will serve with children or people who could be easily victimized. If so, we generally recommend including a “traits or tendencies” question on the application for paid or volunteer positions. This question asks whether an individual is aware of any traits or tendencies they possess that could pose any threat to children, youth, or vulnerable adults. “Traits or tendencies” might include struggles with pornography, anger management problems, etc. This question can assist in assessing the suitability of a person for certain roles and responsibilities, especially those that involve working with children, youth, or vulnerable adults.
5. Religious Beliefs
Asking about a person’s religious beliefs is another area that merits a conversation with your attorney.
Federal law generally allows faith-based organizations to give employment preference to individuals who are members of the same religion. This "ministerial exception" lets ministries and other religious organizations to make hiring and firing decisions based on an employee's beliefs and practices, at least with respect to individuals who are considered to be "ministerial employees."
The ministerial exception has been traditionally applied to pastors, ministers, or other employees who are ordained or who function in a similar religious capacity. In 2020, the U.S. Supreme Court expanded this definition to include teachers. (For details, read Supreme Court Rules in Favor of Religious Employers.)
You may wish to encourage non-ministerial employees to act in accordance with your organization’s religious beliefs. Generally, employers may do so if the beliefs are clearly spelled out and employees are notified that they are expected to adhere to them.
To pursue this option, your organization should clearly communicate the beliefs and expected moral conduct to job applicants and employees. This information could be expressed in a statement of faith or a morals clause in the ministry’s employment handbook. It could also be incorporated into the organization’s bylaws, constitution, etc. Referencing Scripture in these documents in support of the organization’s sincerely held religious beliefs and expected moral conduct can help reinforce the religious nature of your position.
Some religious nonprofits include a copy of their sincerely held religious beliefs with an employment application and have job applicants sign a form that states they have reviewed the statement of faith, understand it, and agree to comply with it.
State and local laws may allow faith-based employers to give hiring preference on the basis of religion only to those serving a purely religious function or in cases where a bona fide occupational qualification exists.
Many cities and states don’t allow employers to ask about a person’s past wages or current compensation during the hiring process. Such laws aim to promote pay equity for people who do similar work. Before making wage inquiries during the hiring process, it’s a good idea to ask a local attorney whether similar state or local restrictions apply to you, since they vary by locale.