The EEOC has no authority to make law or to make anything unlawful. It is not unlawful to ask for type of discharge. Guidelines for safe interviewing are one thing. Passing those guidelines off as law is quite another. And remember, with the narrow exception of the ADA constraints, it is NOT unlawful to ask questions in an interview. The only thing that might be unlawful would be what you might do discriminatorily after you got the answer.
And knowing that someone claimed conscientious objector status should never lead to a discussion of their religion. There are several reasons for claiming that status. No interviewer with half a grain of sense would explore that down the path of religious discussion.
I'll go with the answer provided by the publisher of the MS Law Letter, provided above.
You are right that the miliary discharge question simply comes from EEOC guidelines ... not law. Thanks for asking about the question and rooting out it's origin.
Just to clarify, though, the article does not pass those guidelines off as law. It is simply a list of "no-no" questions when interviewing, considering "what the various employment laws say you can't ask [b]or[/b] what might suggest to an outsider that you're considering an impermissible trait in evaluating candidates."
As you say, the article is meant as "guidelines for safe interviewing."
Asking about types of discharges is akin to asking about why someone left a previous employer.
With evidence of military service on an application or resume, I will inquire about what type of discharge he /she received. In light of AND in spite of everything I have read here on this subject, I will continue to inquire about types of discharges. I've never lost a lawsuit. Go ahead and sue me.
After reading all these responses, I keep coming to the question: Why would you ask? What relevance does the answer have to the job you're trying to fill? Aside from the point made by many (a valid point, IMHO) that you might uncover some protected class information, I have always erred on the side of caution and ask only questions that are directly related to the individual's ability to do the job for which he is interviewing.
If you're really concerned whether someone received a dishonorable or a bad conduct discharge, it should show up if you do a criminal background check. DD's and BCDs can only be adjudged by a courtmartial, which would appear on a background check as a federal conviction.
As an aside, there are many types of discharges other than the widely known honorable discharge, which are not punitive in nature.
The reason that the EEOC has that guidance about discharge is that minority groups get discharged more frequently than the majority group. And don't ask me to prove that, because I don't know anything about discharge rates. It is the same theory as the idea that a high school diploma is not a valid requirement because minority groups have a higher drop-out rate than the majority group. I doubt that there has been cases relating to failure to hire because of discharge status but there has been regarding high school diploma's. The background theory is that such requirements, while not used as an intentional discriminatory tool, have the unintended effect of discriminating against a minority group, thus are just as invalid as intentional discrimination because the outcome is the same.
The guidance is old and I don't know whether or not it has much validity today. I would hope, though, that someone who received a dishonorable discharge umpteem years ago would receive the same consideration as someone who was fired from a job umpteen years ago.
To answer Parabeagles inquiry as to 'why ask?', I always ask somebody why they left their prior jobs. If it's not clearly indicated on their application, it's part of the standard interview. This includes military. If military service tends to mask a significant segment of time on an application, the applicant is not shielded from inquiry from me. Why did you leave the service? What discharge did you receive? What is your MOS? What was your rank? All of those are legitimate inquiries. Relating it to civilians I would ask, similarly, Why did you leave this job? What was your job there and tell me a little about how you did it? Were you in any sort of supervisory capacity, lead person or a trainer of others?
I don't wear one hat to interview a caucasion, another to interview a veteran and another to interview an old woman. Nor will I put on my EEOC shades to interview someone I suspect might be in a protected group.
Comments
And knowing that someone claimed conscientious objector status should never lead to a discussion of their religion. There are several reasons for claiming that status. No interviewer with half a grain of sense would explore that down the path of religious discussion.
I'll go with the answer provided by the publisher of the MS Law Letter, provided above.
You are right that the miliary discharge question simply comes from EEOC guidelines ... not law. Thanks for asking about the question and rooting out it's origin.
Just to clarify, though, the article does not pass those guidelines off as law. It is simply a list of "no-no" questions when interviewing, considering "what the various employment laws say you can't ask [b]or[/b] what might suggest to an outsider that you're considering an impermissible trait in evaluating candidates."
As you say, the article is meant as "guidelines for safe interviewing."
Christy
With evidence of military service on an application or resume, I will inquire about what type of discharge he /she received. In light of AND in spite of everything I have read here on this subject, I will continue to inquire about types of discharges. I've never lost a lawsuit. Go ahead and sue me.
If you're really concerned whether someone received a dishonorable or a bad conduct discharge, it should show up if you do a criminal background check. DD's and BCDs can only be adjudged by a courtmartial, which would appear on a background check as a federal conviction.
As an aside, there are many types of discharges other than the widely known honorable discharge, which are not punitive in nature.
Again, my question is, why ask to begin with?
The guidance is old and I don't know whether or not it has much validity today. I would hope, though, that someone who received a dishonorable discharge umpteem years ago would receive the same consideration as someone who was fired from a job umpteen years ago.
I don't wear one hat to interview a caucasion, another to interview a veteran and another to interview an old woman. Nor will I put on my EEOC shades to interview someone I suspect might be in a protected group.