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Posted: 2001-03-30 11:14
Our application specifically asks:
"Are you a U.S. Citizen? yes no " and then follows up with:
"If no, do you have a legal right to live and work in the U.S.? yes no"
A state agency is contesting our ability to recruit through their facilities because of the first question.
We use the question to determine what followup questions to ask since our employees will work in the US, Canada and Mexico. A US Citizen has an easy time going into either Canada or Mexico, but foreign nationals have to take some extra steps. So long as the individual takes those extra steps to be acceptatble to Canada and Mexico they continue through the process.
We were under the impression it was ok to ask the question for business reasons so long as we don't deny them a job based on that specific answer. Are we wrong?
EpsteinBecker&Green,P.C.
Joined: Sep 13, 2001 Posts: 8461
Posted: 2001-03-30 13:55
As a general rule, employers need to be careful about the information they seek from applicants. When information is requested that could be used to discriminate, the employer who made the request may be forced to offer an explanation, and be second-guessed.
Here, for example, an employer cannot discriminate on the basis of citizenship, so long as an employee has a legal right to live and work in the United States. By asking about their citizenship, you are obtaining information which could be used in a discriminatory fashion. It sounds as if your articulated business reason for asking the question is something that could be done post-hire, and preferably in a way that does not require the employees to disclose their citizenship status. If for no other reason than to remove any possibility that your motives could be misunderstood (e.g., by the state agency contesting your ability to recruit), you may want to rewrite your employment application form.
nork1
Joined: Sep 13, 2001 Posts: 1734
Posted: 2001-03-30 14:24
If you ever got into an employment discrimination law suit based on national origin, you'd have a tough time convincing a jury that you really don't discriminate with that first question on your application. You state that your non-citizen employees have to take some extra steps, which can be interpreted (by a jury!) to mean that you prefer to hire only citizens which in turn means that you probably screen out some legal residents of the US based on their national origin.
You can ask the question, but it minimizes if not outright undermines any defense you might offer in a hiring discrimination suit.
And the reasoning behind the business decision is rather weak - if the prospective hire could not travel to Mexico or Canada because she/he wasn't a citizen, that'd be one thing. A jury, however, might not accept the "extra steps" involved since they do ultimately continue through the process and perform as required for you the employer.
"Do you have a legal right to live and work in the US" is a perfectly legit question and is the safe one to ask.
You are correct in your statement that you can ask the first question. It's not a prudent question to ask, though, and it may well get you into trouble later.
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Posted: 2001-03-30 11:14 
