Interviewing and Selecting Job Candidates: Minnesota
Federal law and guidance on this subject should be reviewed together with this section.
Author: Sam Diehl, Gray Plant Mooty
- The Minnesota Human Rights Act (MHRA) is broader than federal nondiscrimination statutes. It includes certain unique protections including a specific prohibition on certain inquiries when interviewing candidates for open positions. See Prohibited Inquiries.
- Unlike federal statutes, the MHRA covers all employers in Minnesota, even those with only a single employee. See Prohibited Inquiries.
- Minnesota also prohibits questions based on individual's use of 'lawful consumable products,' such as food, alcohol and tobacco. See Lawful Activities.
- Minnesota employers are prohibited from discriminating because of, or inquiring about, National Guard or military reserve status and may not ask about past participation in a labor strike. See Other Prohibited Questions.
Employers should avoid overbroad medical inquiries. The Minnesota Supreme Court has held that employer inquiries that are not tailored to the requirements of the position are not permitted under the MHRA. The case addressed an employer's request for health and medical information that was unrelated to the job tasks. Huisenga v. Opus Corp., +494 N.W. 2d 469 (1992).
The Minnesota Human Rights Act (MHRA), +Minn. Stat. § 363A.01 prohibits employment discrimination based on sexual orientation, marital status and receipt of public assistance, as well as federally-protected characteristics. In addition, unlike most federal discrimination statutes, the MHRA covers all employers in Minnesota regardless of their size. +Minn. Stat. § 363A.08; +Minn. Stat. §363A.03, Subd. 16.
On several points the MHRA also includes more specific requirements than federal law. For example, the MHRA specifically prohibits employers from:
- Maintaining 'a system of employment which unreasonably excludes a person seeking employment' based on a protected characteristic (e.g., race, sexual orientation, etc.) in addition to other forms of discrimination;
- Seeking or obtaining 'information from any source that pertains to a protected characteristic' related to a candidate; and
- Causing 'to be printed or published a notice or advertisement that relates to employment or membership and discloses a preference, limitation, specification or discrimination based on' a protected characteristic, regardless of whether the advertisement causes an applicant damages. +Minn. Stat. § 363A.08.
Additional areas where Minnesota laws relating to interviewing and selection differ from, or supplement, the protections provided to employees under federal laws are summarized below.
The MHRA's age discrimination protections extend to any worker over 18, not just those over 40 that are protected under the Age Discrimination in Employment Act. +Minn. Stat. § 363A.03, Subd. 2.
As a result, while employers in Minnesota may ask applicants if they are 18 or older, they may not ask questions that would require applicants to otherwise identify their age or provide information from which the employer could determine their age except in those rare circumstances where age is a bona fide occupational qualification (BFOQ).
The MHRA's prohibition on disability discrimination covers all employers, unlike the federal Americans with Disabilities Act (ADA) which applies to employers with 15 or more employees. However, like the ADA, the MHRA requires only employers with 15 or more employees to provide reasonable accommodations to individuals with disabilities. +Minn. Stat. § 363A.08, Subd. 6.
While the federal ADA Amendments Act (ADAAA) broadened the definition of disability under the ADA, the MHRA has not been similarly amended. However, even before the ADAAA's 2008 enactment, the MHRA's definition of disability differed slightly from the ADA's definition. Nonetheless, the day-to-day impact of these laws on employers should be similar as a practical matter.
For instance, it is important for employers to consider the job duties and physical requirements of a position well before interviewing and selecting candidates. Careful thought regarding a position's genuine requirements before interviewing candidates, including the creation or updating of a job description, can help employers avoid discrimination claims. When an employer receives an application from a person with a disability, having up-to-date information about the position will help the employer accurately and lawfully evaluate decisions relating to reasonable accommodations.
Unlike federal law, the MHRA expressly prohibits discrimination based on sexual orientation. +Minn. Stat. § 363A.08. This prohibition protects gay, lesbian, bisexual and transgender individuals from employment discrimination. When conducting interviews of applicants, Minnesota employers may not ask questions that directly or indirectly seek information concerning an applicant's sexual orientation.
The MHRA includes an exception from its prohibition of sexual orientation discrimination for positions in religious or fraternal organizations for which sexual orientation is a bona fide occupational qualification for the position. +Minn. Stat. § 363A.20, Subd. 2.
The MHRA also bans discrimination against job applicants or employees based on their marital status. The MHRA defines marital status broadly and includes the situation or identity of an applicant's or employee's spouse.
As a result, employers should avoid application questions, interview questions or other inquiries that could be viewed as an attempt to obtain information regarding marital status. For example, an employer should not ask a female applicant to identify herself by a title such as 'Miss' or 'Mrs.'
Along similar lines, employers may not recruit for a position in a manner that suggests they either seek or exclude married, single, widowed or divorced applicants.
Bona Fide Occupational Qualification (BFOQ)
Minnesota's various prohibitions against discrimination in employment and hiring are subject to a general exception that permits discrimination when recruiting or interviewing for positions where a particular characteristic is a bona fide occupational qualification. +Minn. Stat. § 363A.08.
For instance, an all-girls summer camp seeking to hire counselors may generally disqualify male candidates because of their sex. This is a narrow exception and employers would be wise to consider this issue carefully before recruiting or interviewing for any position.
Subject to narrow exceptions, Minnesota employers may not refuse to hire a job applicant or discipline or discharge an employee because of the applicant's or employee's use of 'lawful consumable products' off the employer's premises during nonworking hours. +Minn. Stat. § 181.938. As used in the statute, 'lawful consumable products' include any lawful product that is consumed including food, alcoholic or nonalcoholic beverages and tobacco. +Minn. Stat. § 181.938, Subd. 2. Employers should avoid questions or discussions during job interviews that relate to such products.
Limited exceptions apply where the nonuse of lawful products is a bona fide occupational qualification (BFOQ); where the off-duty use of tobacco, alcohol or other lawful products represents a legitimate conflict of interest; or where the employee's job performance is affected.
As discussed above, employers should carefully consider a position's job duties and physical requirements well before interviewing and selecting candidates. Employers may not undertake certain inquiries until after a conditional offer of employment is made even if they have carefully considered the need for the examination or test. In addition, any medical examination must be conducted on all other applicants who have received a conditional job offer.
Employers also must take into account Minnesota's other unique requirements for preemployment testing or screening in addition to the numerous federal considerations. Recruiting and Hiring > Preemployment Screening and Testing: Minnesota > Additional Unique Requirements.
Other Prohibited Questions
Under Minnesota law, employers are prohibited from discriminating because, of or inquiring about, National Guard or military reserve status 'with intent to discriminate.' +Minn. Stat. § 181.535. Employers should avoid asking if an applicant is a member of the National Guard or military reserves or a similar line of inquiry. See Employee Management > Managing Leaves-USERRA.
Similarly, applicants may not be required to submit a statement regarding their previous participation in a strike. This provision also governs application forms, and bans anything that would serve to violate this prohibition against strike-related inquiries. +Minn. Stat. § 181.53.
Public employers should avoid asking if an applicant has been arrested since they may not seek information about arrests unless an arrest has been followed by a valid conviction. Minnesota law also states that 'no person shall be disqualified from public employment solely or in part because of a prior conviction unless the crime or crimes directly relate to the position sought, or the occupation for which a license is sought.' +Minn. Stat. § 364.03 et seq.
Ban the Box Law
Private employers in Minnesota are prohibited from asking criminal history questions on an initial job application. This measure is known as a "ban the box" law referring to the box on applications that candidates are asked to check off if they have been convicted of a crime.
Under the "ban the box" law, Minnesota employers will still be able to make criminal history inquiries either during a job interview or after a conditional offer has been made. Also, limited exemptions are provided for positions subject by state law to mandatory background checks, such as school bus drivers or jobs with the Department of Corrections.
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