24.9.1406 PRE-EMPLOYMENT INQUIRIES
(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.
History: 49-2-204 and 49-3-106, MCA; IMP, 49-2-303 and 49-3-201, MCA; NEW, Eff. 1/4/75; AMD, 1991 MAR p. 1841, Eff. 9/27/91; AMD, 1998 MAR p. 3201, Eff. 12/4/98.