Code of Maine Rules
94 - INDEPENDENT AGENCIES
348 - MAINE HUMAN RIGHTS COMMISSION
Chapter 3 - EMPLOYMENT REGULATIONS of the MAINE HUMAN RIGHTS COMMISSION
Section 348-3-4 - PRE-EMPLOYMENT OR ADMISSION INQUIRIES
Universal Citation: 94 ME Code Rules ยง 348-3-4
Current through 2024-13, March 27, 2024
1. Pre-employment or admission inquiries prohibited
A. It is unlawful employment discrimination,
except when based on a bona fide occupational qualification, for any employer,
employment agency or labor organization, prior to employment or admission to
membership of any individual, to elicit or attempt to elicit information
directly or indirectly pertaining to protected class or use any form of
application for employment or personnel or membership blank containing
questions or entries directly or indirectly pertaining to protected class.
Pre-employment or admission inquiries covered by this section include, but are not limited to, questions asked on application forms, questions asked in employee interviews, questions asked of references or former employers, requests for photographs or any other kind of inquiry used before selection.
Examples of unlawful pre-employment or admission inquiries may include, but are not limited to, the use of the following inquiries:
(1) NAME. Where original name of applicant
has been changed by court order, inquiries that could indicate or suggest
religious group or national origin or ancestry or gender identity by requesting
any former names, including maiden names, ever used by applicant; names or
former names of spouse, parents or other relatives.
(2) BIRTHPLACE. Requirement that applicant
submit birth certificate or baptismal record, which could indicate religious
denomination, national origin or ancestry. Inquiries into the place of birth of
applicant, spouse, parents or other relatives could indicate national origin or
ancestry.
(3) CITIZENSHIP. Whether
applicant is native born or naturalized citizen; country of former citizenship
or date of naturalization; citizenship of spouse, parents or other relatives.
Nothing in this chapter, however, precludes an employer from asking questions
necessary to comply with the Immigration Reform and Control Act of
1986.
(4) NATIONAL ORIGIN
OR ANCESTRY. Nationality, lineage ancestry or descent of applicant, spouse,
parents or other relatives; language commonly used by applicant, or how
applicant acquired ability to read, write or speak a foreign
language.
(5) MILITARY SERVICE.
Applicant's military experience in armed forces, other than U.S., draft
classification or other military eligibility, which could indicate national
origin or ancestry.
(6) RELIGION.
Applicant's religious denomination, affiliation, church, parish, pastor, or
religious holidays observed; representing to applicants that employer is of a
predominant or particular religious orientation.
(7) EDUCATION. Inquiry asking specifically
for the religious affiliation of applicant's school.
(8) REFERENCES. Requirement of submission of
a religious reference.
(9) WORK
SCHEME. Any inquiry into willingness to work any particular religious
holiday.
(10) ORGANIZATIONS.
Request a list of all clubs, social fraternities, societies, lodges, or
organizations to which the applicant belongs, other than trade, professional or
service organizations.
(11)
HOUSEHOLD COMPOSITION. Requesting information about an applicant's living
arrangements or family members.
(12) MEDICAL HISTORY. Any inquiry as to
whether or not an applicant has received gender-affirming physical and/or
behavioral health care.
(13)
COMPENSATION HISTORY. Making inquiries of prospective employees or their
current or former employers regarding the prospective employee's compensation
history before an offer of employment that includes all terms of compensation
has been negotiated and made to the prospective employee.
(14) CRIMINAL HISTORY. Making inquiries about
an applicant's history of arrests. Employers may ask about convictions and/or
pleas of nolo contendre.
(15) HAIR STYLE/APPEARANCE. Making inquiries
about an applicant's hair style/appearance when the hair style/appearance is
associated with the applicant's protected class status (i.e., Afro styles or
protective hair styles, such as locks, twists, and braids).
B. It is unlawful employment
discrimination for an employer, employment agency or labor organization to
request information from a member of one protected class that would not be
requested from a member of another, e.g., one cannot ask older applicants
questions concerning how long they expect to remain in the workforce if the
employer does not ask the same questions of younger applicants.
C. It is unlawful employment discrimination
to deny equal consideration for employment, promotion or any other term,
condition or privilege of employment or membership in a labor organization
because that person refused to answer a pre-employment or admission inquiry if
that inquiry is prohibited by this chapter and the Act.
2. Pre-employment or admission inquiries permitted
A. Pre-employment
or admission inquiries that are made in conformance with the instructions from,
or requirements of, an agency or agencies of the local, state or federal
government in connection with the administration of fair employment practices
programs will not constitute evidence of unlawful employment discrimination
under the Act.
B. It is not an
unlawful employment practice to record any data required by law, or by the
rules and regulations of any state or federal agency, provided such records are
kept in good faith for the purpose of complying with law, and are not used for
the purpose of discrimination in violation of the Act.
C. Subsequent to employment or admission to
membership, it is not unlawful employment discrimination to make a record of
such information or features concerning an individual as are needed in good
faith for the purpose of identifying that individual, provided these records
are intended for and used in good faith solely for such identification, and not
for the purpose of unlawful discrimination in violation of the Act. Records of
features regarding physical or mental disability that are collected must be
collected and maintained on separate forms and in separate files and be treated
as confidential records.
D.
Physical or mental disability. A covered entity may make pre-employment or
membership inquiries as permitted by §
13(3) of this
chapter.
Disclaimer: These regulations may not be the most recent version. Maine may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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