Interviewing and Selecting Job Candidates: Missouri
Federal law and guidance on this subject should be reviewed together with this section.
Author: Karen R. Glickstein, Polsinelli
- The Missouri Human Rights Act (MHRA) applies to private employers with six or more employees and protects individuals from discrimination based on race, color, religion, national origin, sex (including pregnancy), ancestry, age or disability. See Missouri Human Rights Act.
- Missouri has a resource guide with examples of questions to avoid during a job interview. See Preemployment Inquiries.
- Missouri employers may not deny employment because of an applicant's lawful use of tobacco products on their own time. See Smoking.
- The Missouri Commission on Human Rights warns against asking about information which may disproportionately affect members of certain protected groups. See Arrest and Conviction Records.
- Localities including Columbia, Kansas City and St. Louis have local requirements addressing interviewing and selecting job candidates. See Local Requirements.
Missouri Human Rights Act
The Missouri Human Rights Act (MHRA) prohibits discrimination based on race, color, religion, national origin, sex (including pregnancy), ancestry, age (40-69) or disability. +Mo. Rev. Stat. § 213.055. These prohibitions apply to job applicants as well as persons who are employees of a company.
The MHRA applies to private employers with six or more employees and all public employers. It also covers employment agencies, "temporary services" and labor organizations.
The MHRA specifically prohibits employment application forms or inquiries that establish, either directly or indirectly, limitations, specifications or discrimination based on the protected categories, unless such expressions are due to a bona fide occupational qualification (BFOQ). +8 CSR 60-3.020(2)
Thus, individuals interviewing and selecting candidates for employment in Missouri should carefully consider the questions they ask job applicants. The questions must not directly or inadvertently seek information about protected status.
The Missouri Commission on Human Rights has published a Resource Guide for Employers which contains examples of questions that should be avoided during an interview. The guide also includes examples of the types of questions that are acceptable.
Some examples of problem questions with appropriate counterparts include:
|Problem Question||Appropriate Question|
|Where were you born?||What is your current address?|
|What religious holidays do you observe?||Can you work the schedule required of this position?|
|Do you have children?||Would you be able to work overtime occasionally or travel?|
|What is your date of birth?||Are you over 18?|
Sexual Orientation and Gender Identity
There is no Missouri statute preventing discrimination based on sexual orientation or gender identity. However, under Executive Order 10-24, issued by Governor Jay Nixon, the state government's executive branch may not discriminate based on sexual orientation.
Localities including Columbia and Kansas City has local requirements addressing interviewing and selecting job candidates. See Local Requirements.
Missouri law extends the Missouri Human Rights Act's protections to individuals with HIV infection, acquired immunodeficiency syndrome and acquired immunodeficiency syndrome-related complex. +Mo. Rev. Stat. § 191.665. The protections do not apply, however, if infection would directly threaten the health or safety of others or cause the infected individual to be unable to perform employment duties.
While Missouri law does not have a statute prohibiting the use of polygraph testing, any employer considering the use of polygraph testing during the interview and selection process should be mindful of the federal Employee Polygraph and Protection Act (EPPA), +29 U.S.C. § 2001 et seq. The EPPA prohibits most private employers from using lie detector tests either during the preemployment selection process or during the course of employment.
Nothing in Missouri law prevents an employer from instituting an anti-nepotism policy. Thus, while care should generally be taken when interviewing job candidates to avoid questions regarding family status (which could be interpreted to be inquiries into protected status such as pregnancy), employers may ask an applicant if he or she has a relative working for the company in order to avoid a hiring decision that might violate a company's consistently enforced anti-nepotism policy.
Missouri generally does not closely regulate an employer's ability to inquire regarding an individual's on or off-duty participation in lawful activities. The following listing contains some examples of lawful activities outside of work to which employers may want to give particular notice:
Under Missouri law, an employer cannot refuse to hire an individual for lawfully using tobacco products on their own time and away from the employer's premises. +Mo. Rev. Stat. § 290.145.
Exceptions exist within the statute, however, for religious organizations, church-operated institutions and nonprofit organizations whose principal business is health care promotion. +Mo. Rev. Stat. § 290.145.
In addition, even those employers that may not base decisions on tobacco use, such as denying employment, may take adverse action against an employee if tobacco use interferes with the employee's duties and performance, the employee's coworkers, or the overall operation of the employer's business. +Mo. Rev. Stat. § 290.145. An employer also may charge lower insurance premium rates to individuals who do not smoke or use tobacco products. +Mo. Rev. Stat. 285.125.
Missouri also prohibits an employer from refusing to hire an individual for lawful use of alcohol on their own time and away from the employer's premises with the same exceptions and restrictions as noted above for tobacco use. +Mo. Rev. Stat § 290.145.
Political Activities and Union Membership
Missouri has no specific law prohibiting employers from questioning applicants about their political activities or union membership. To comply with federal law, however, employers should avoid questioning applicants regarding union membership.
Employers that use any form of job testing (which includes all "formal, scored, quantified and standardized techniques of assessing job suitability) should be mindful of the provisions of +8 CSR 60-3.030 which notes that any testing which "adversely affects" the hiring, promotion, transfer or any other job opportunity will constitute illegal discrimination unless the test has been validated and the person giving the test can demonstrate that there are no other alternative procedures suitable to accomplish the same goals.
The regulation notes that evidence of a test's validity "should consist of empirical data demonstrating that the test is predictive of, or significantly correlated with, important elements of work behavior" related to the job at issue. +8 CSR 60-3.030(3).
Arrest and Conviction Records
Missouri does not have a general statute covering whether private employers may question applicants on their arrest and conviction records. However, "no person shall suffer any legal disqualification or disability because of a finding of guilt or conviction of a crime or the sentence on his conviction" with certain exceptions. +Mo. Rev. Stat. § 561.016. One exception to this rule is when the conviction is reasonably related to the applicant's ability to perform a particular job. +Mo. Rev. Stat. § 561.016(4).
The Missouri Commission on Human Rights does caution against inquiring about information that may disproportionately affect members of certain protected groups, such as minority applicants.
Employers also should be aware that in April 2012, the Equal Employment Opportunity Commission (EEOC) issued an updated Enforcement Guidance for employers regarding the use of arrest and conviction records in hiring and employment decisions. The EEOC takes the position that before an employer denies employment to an individual because of a criminal record, the employer should engage in an individualized assessment so that the applicant can explain the circumstances of the conviction and why it should not exclude him or her from employment.
Columbia and Kansas City have "ban the box" laws. See Ban the Box.
An employer cannot ask an applicant to undergo a drug test before the applicant is offered a job. However, a job offer can be made conditional upon the results of a drug test. Additionally, an employer may ask an applicant whether he or she uses illegal drugs but should not ask about prescription medications.
An employer shall not use any genetic test results or information to discriminate against a prospective employee in any way. A limited exception to the use of genetic information by employers applies when the information directly relates to an individual's ability to perform assigned job responsibilities. +Mo. Rev. Stat. § 375.1306.
St. Louis Discrimination
The City of St. Louis has an ordinance prohibiting employment discrimination based on race, color, age, religion, sex, familial status, disability, sexual orientation, gender identity or expression, national origin or ancestry. +St. Louis, Missouri Code of Ordinances Sec. 3.44.080. The law applies to any person employing six or more persons exclusive of that person's parents, spouse or children. The penalty for violating the ordinance is a fine between $250 and $500 and/or imprisonment up to 90 days.
Columbia Ban the Box
Columbia prohibits employers with operations in the city from asking about an applicant's criminal history or conducting a criminal background check prior to making a conditional job offer. The law also encourages employers to not automatically ban job seekers with a criminal history.
This law covers private and public employers. A noncompliant employer may be subject to fines of up to $1,000 and imprisonment up to 30 days.
Limited exceptions are provided for the following situations:
- Employers that must exclude applicants with certain criminal convictions from employment due to federal, state or local law or regulation;
- Where a standard fidelity bond is required for a position and an applicant's conviction would disqualify the applicant from obtaining such a bond; and
- Where employers license individuals under the Emergency Medical Services (EMS) Systems Act.
The City of Columbia has an ordinance prohibiting employment discrimination based on race, color, religion, sex, national origin, ancestry, marital status, disability, sexual orientation, gender identity or expression, receipt of governmental assistance, alienage or citizenship status, status as a victim of sexual or domestic violence, or order of protection status. The ordinance applies to the City or any department, board, commission, or agency thereof, or any person who employs one or more individuals within the jurisdiction of the City, exclusive of parents, spouse or children of such person, and any person acting directly in the interest of an employer. sexual orientation is defined as "[m]ale or female homosexuality, heterosexuality and bisexuality, by preference, practice or as perceived by others, but not including sexual preference or practice between an adult and a minor." It defines gender identity as "[t]he gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." It is also unlawful for an employer, because of an individual's protected category, to refuse to hire, to terminate, or to otherwise discriminate against any individual with respect to the individual's compensation, terms, conditions, or privileges of employment. Violating the ordinance is a criminal offense with a possible penalty of up to a $1,000 fine or up to 30 days in jail. But it shall not be unlawful for any church or religious school or religious day care center to consider sexual orientation in any hiring or employment action. +Columbia, Missouri Code of Ordinances Sec. 12-34.
Kansas City Discrimination
Kansas City, Missouri, prohibits discrimination in employment on the basis of race, color, sex, religion, national origin or ancestry, disability, sexual orientation, gender identity, and age (if an individual is 40 years of age or older). It defines gender identity as "the actual or perceived appearance, expression, identity or behavior of a person as being male or female, whether or not that appearance, expression, identity or behavior is different from that traditionally associated with the person's designated sex at birth." It defines sexual orientation as "actual or perceived heterosexuality, homosexuality or bisexuality." The Kansas City ordinance applies to any person employing six or more employees. An employee is any individual employed by an employer but does not include "an individual employed by his parents, spouse or child or any individual employed to render services as a domestic in the home of the employer." Any person who engages in a prohibited discriminatory practice shall be guilty of an ordinance violation, punishable by a fine of not more than $500, by imprisonment of not more than 180 days, or by such fine and imprisonment. +Kansas City, Missouri Code of Ordinances Sec. 38-103.
Kansas City Ban the Box
Kansas City has a "ban the box" ordinance that applies to private employers with six or more employees. The ordinance bans an employer from inquiring about an applicant's criminal history until after it has been determined that the applicant is otherwise qualified for the position, and only after the applicant has been interviewed for the job. The law restricts an employer from basing hiring or promotional decisions on an applicant's criminal history unless the employer can show that it considered the frequency, recentness and severity of the criminal record and that the record was reasonably related to the duties and responsibilities of the position. See Preemployment Screening and Testing: Missouri.
Kansas City Salary History Restrictions
When interviewing applicants, keep in mind that Kansas City has enacted a law restricting salary history inquiries, effective October 31, 2019, See Employment Offer: Missouri.
There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.