Current through Register Vol. 6, March 22, 2024
(1) Any pre-
employment inquiry made in connection with prospective employment which elicits
information regarding race, color, national origin, religion, creed, physical
or mental disability, age, sex, marital status or, in the case of government
employment, political beliefs, shall raise a suspicion of intent to unlawfully
discriminate except when:
(a) the inquiry is
required for implementation of a bona fide lawful affirmative action
plan,
(b) the inquiry is required
by court ordered or other government reporting or record-keeping requirements
or
(c) in the case of an inquiry
concerning age, physical or mental disability, marital status or sex, the
reasonable demands of the position (bona fide occupational qualifications)
require an age, physical or mental disability, marital status or sex
distinction.
(2) Whether
or not any pre-employment inquiry is actually unlawful depends upon whether the
inquiry was intended to be used or was used to unlawfully discriminate. The
following preemployment inquiries may raise a suspicion that the employer
intends to use the information to unlawfully discriminate and, therefore,
should not be asked at any time during the hiring process, including, but not
limited to, on application forms and during interviews. The list contains
suspect pre-employment inquiries followed, when appropriate, by examples of
lawful inquiries regarding the same information.
(a) General inquiry regarding race, color,
national origin, religion, creed, physical or mental disability, age, sex or
marital status and, in the case of governmental employers only, political
beliefs.
(b) Inquiry regarding
original name. It is lawful to inquire regarding change of name for purposes of
checking employment and education records.
(c) Inquiry regarding residency which
requests information indicating birthplace or place of foreign citizenship,
former or present. It is lawful to inquire regarding present address, previous
address in the U.S. and duration of residency in a particular city, county or
state.
(d) When age is a bona fide
occupational qualification, an inquiry which requires that age be proven by
birth certificate or baptismal record. When age is a bona fide occupational
qualification, it is lawful to require that age be proven by a record which
does not indicate national origin, ancestry or religion.
(e) Inquiry regarding skin, hair or eye
color.
(f) Requirement of a
photograph or a request for one, at the applicant's option.
(g) Inquiry regarding military experience
outside the U.S. armed forces.
(h)
Inquiry regarding criminal arrests. It is lawful to inquire regarding criminal
convictions.
(i) Inquiry regarding
native language, or the manner in which a foreign language was acquired. It is
lawful to inquire regarding foreign languages spoken and degree of
fluency.
(j) General inquiry
regarding membership in organizations. It is lawful to inquire regarding
membership in organizations the names of which do not indicate race, color,
national origin, religion, creed, physical or mental disability, age, sex or
marital status. Additionally, government employers should not inquire regarding
membership in organizations the names of which indicate political
beliefs.
(k) Inquiry regarding
names of relatives.
(l) Inquiry
regarding garnishment record.
(m)
General inquiry regarding physical or mental condition. It is lawful to make
necessary and job-related inquiries regarding specific physical or mental
conditions required by the reasonable demands of the position.
(n) Inquiry regarding pregnancy or
childbearing plans.
(o) Inquiry of
applicants of only one sex regarding childcare arrangements.
(p) Inquiry regarding citizenship.
(q) Inquiry regarding height and
weight.
(3) Information
necessary for tax, insurance, social security, compliance with garnishment or
immigration laws or other legitimate business purposes may be obtained after
employment.
49-2-204 and
49-3-106,
MCA; IMP,
49-2-303
and
49-3-201,
MCA;