Can I ask job applicants where they are from?

September 26, 2017

Topics: Hiring and Recruiting

A client serviced South American customers and needed customer service representatives who could not only speak their language, but could relate to them culturally.  The client asked whether they could ask job applicants where they were from.  More specifically, could they put in the want ad that they were seeking applicants from Columbia and Brazil?

Generally, employers should not inquire as to the national origin of job applicants as doing so could be perceived as national origin discrimination.  Federal and state laws prohibit employers from making employment decisions because of an applicant’s or employee’s national origin.  Usually, a person’s national origin or cultural background it not related to his or her ability to perform a job.  In this case, however, the client was looking to hire individuals from these countries – not to exclude them.  Does that make a difference?

It may.  If the business can show it has a legitimate business reason for the requirement, the factor can be used for hiring.  However, companies should be sure what their requirement is.  For example, in this case, the business needed people who were fluent in Spanish and/or Portuguese, and were familiar with Columbian and Brazilian business etiquette – not necessarily people who were from Columbia or Brazil.  Do they need people who specifically speak Columbian Spanish and Brazilian Portuguese?  That depends on how different the languages are and what is needed to service the customer base.

In this case, it would be permissible to seek applicants that “must speak fluent Spanish and/or Portuguese and have experience doing business with Columbian and/or Brazilian customers” because those are requirements for the job.  The company, however, needs to be prepared to consider applicants who do not come from either Columbia or Brazil, or South America at all for that matter – as long as the applicants satisfy the requirements.  For that reason, no, the company cannot ask where the job applicants are from.  But they can seek information to determine whether the applicant has the skills necessary to do the job and can, and should, conduct at least part of the interview in Spanish and/or Portuguese.

As an additional concern, companies need to be certain that they are not making decisions because of their client’s prejudices.  It is one thing to seek employees who speak your customers’ language.  It is another to seek employees who “match” your customer base because you think the customers will be “more comfortable” with people who are like them.  If there is a particular business etiquette, familiarity with the customs may be important – but consider whether this is something that can be learned.  Otherwise, seeking employees because of customer preferences can mask discrimination.

In one case, a service station fired their Muslim manager because people in the community expressed discomfort at having their gas rung up by a woman with a hijab (head scarf).  When she brought a discrimination claim, the question became whether the company could take action based on the prejudices of their customers.  In general, employers cannot do that.

Hiring employees can be tricky under the discrimination laws applicable to your company.  Consult with counsel to ensure that your hiring managers do not ask questions that can lead to discrimination suits.