Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God (Romans 13:1).
It is common for employers to interview applicants for employment in addition to having them complete a written application. This practice provides the employer with an opportunity to assess applicants' suitability for a particular position. Church leaders should understand that several state and federal laws may restrict the kinds of questions that may be asked during an employment interview.
Employers are legally entitled to ask questions that will help them determine if an applicant meets the requirements for a job. But, certain questions are not relevant to an applicant's qualifications and should not be asked. For example, questions about an applicant's race, national origin, disabilities, or age generally are not relevant to an applicant's ability to perform the requirements of a job, and should not be asked. In rare cases, such questions may be permissible if based on a "bona fide occupational qualification." Also, state and federal laws banning discrimination in employment on the basis of religion generally contain broad exemptions for religious organizations. As a result, it generally is permissible for religious organizations to exclude or prefer persons for employment on the basis of religion.
Church leaders should periodically review questions that are asked during interviews, or on employment applications. Look at each question and ask, "Why are we asking this question? Is this information relevant to the qualifications for this position?"
The following table summarizes the legal status of several kinds of questions. The table is not exhaustive and there may be exceptions. It assumes that an employer is covered under applicable state or federal nondiscrimination laws.
Also, note that the "ministerial exception" generally bars the civil courts from reviewing decisions by churches and other religious organizations regarding the selection of ministers. This exception permits religious organizations to ask applicants for ministerial positions any questions they wish. See section 8-10 in Pastor, Church & Law, Volume 3: Employment Law.
|Race or color||No.||Applicant's race or color of skin.|
|Arrest record||No, unless job related||Number and kinds of arrests.|
|Conviction record||Questions about actual criminal convictions if substantially related to a person's ability or suitability for performing a specific job.||Questions about convictions unrelated to job requirements.|
|Military service||Military experience or training if job related.||Type or condition of discharge; questions about military service for another country.|
|Credit records||None, unless job related.||Questions about charge accounts, credit rating, bankruptcies, and garnishments.|
|Religion||Religious organizations can ask applicants their religious affiliation, and give preference to applicant's who share the organization's religious beliefs.||—|
|References||Names of professional and character references, including the applicant's pastor or other religious leader.||—|
|Birthplace and residence||Applicant's place of residence, length of residence at that location and prior locations, and location of current employer.||Birthplace of applicant, or the applicant's parents or other relatives; birth certificate, naturalization or baptismal certificate prior to hiring.|
|Language||Languages the applicant speaks or writes fluently, if job related.||Applicant's mother tongue; language used at home; how the applicant acquired the ability to read, write, or speak a foreign language.|
|Name||Whether applicant has worked under a different name if necessary to allow a check of work or education records.||The original name of an applicant whose name has been legally changed or the applicant's name.|
|Marital status||Whether the applicant is married, single, divorced, separated, or engaged, if relevant in assessing the applicant's suitability for employment with a religious employer based on doctrinal considerations.||Whether the applicant is married, single, divorced, separated, engaged, or widowed, unless these questions are relevant in assessing an applicant's suitability for employment with a religious employer based on doctrinal considerations.|
|Citizenship||Documentation to establish the applicant's identity and employment eligibility.||Birthplace of the applicant or any information not relevant to making employment decisions.|
|Age||None, unless age is a bona fide occupational qualification.||Requesting age on employment application, using phrases such as "young, boy, girl, recent college graduate" on help wanted notices or advertisements.|
|Sex||None, unless sex is a bona fide occupational qualification (such as an applicant for a pastoral position with a church that is doctrinally opposed to the ordination of women).||An applicant's sex, unless sex is a bona fide occupational qualification (such as an applicant for a pastoral position with a church that is doctrinally opposed to the ordination of women).|
|Family status||If applicant has responsibilities or commitments that prevent him or her from meeting work schedules if asked of all applicants regardless of sex.||Marital status, number and age of children, spouse's job.|
|Pregnancy||Applicant's anticipated duration of employment, if asked of all applicants.||Any questions about pregnancy, medical history, or family plans.|
|Child care||None, unless job related and asked of all applicants.||Questions about child care arrangements that are only addressed to female applicants.|
|Height and weight||None, unless job related.||Any question unrelated to job requirements.|
|Disability||Whether the applicant can perform the essential functions of the job in question.||Questions about an applicant's disabilities.|
|Organizations||Applicant's membership in professional organizations if job related.||All clubs, social organizations, societies, and other non-job-related organizations to which the applicant belongs.|
|Relatives and friends||Names of applicant's relatives already employed by the employer.||Names of friends working for the employer or relatives other than those working for the employer.|
|Photographs||None, except after hiring.||Photographs with an application or after an interview but prior to hiring.|
|Sexual orientation||Many states have enacted laws prohibiting private employers from discriminating in employment decisions on the basis of sexual orientation. All of these laws exempt religious employers. As a result, religious employers may ask applicants about their sexual orientation if required by the employer's doctrine.||Many states have enacted laws prohibiting private employers from discriminating in employment decisions on the basis of sexual orientation. All of these laws exempt religious employers. As a result, religious employers may ask applicants about their sexual orientation if required by the employer's doctrine.|
To learn more about hiring employees, purchase the downloadable resource Safe Hiring Practices for Ministries, available on ChurchLawAndTaxStore.com.