Home Backtrack

Pitfalls During the Hiring Process

Published:  March 9, 2017

Employers should be aware of the various Federal and Massachusetts laws that prohibit employers from making certain pre-employment inquiries of job applicants.  Employers should not ask any questions about someone’s race, gender, national origin, age, or any other protected characteristic.  Additionally, employers should not ask questions that elicit the following information:

  1. Marital status/Maiden Name:  Inquiries concerning this might give rise to a gender discrimination claim. 
  2. Date of birth:  Inquiries concerning this might give rise to an age claim. 
  3. Citizenship status:  Inquiries concerning this might give rise to a national origin claim.
  4. Children:  Inquiries concerning this might give rise to a gender discrimination claim.    


According to the EEOC, if an employer requires job applicants to take a test, the test must be necessary and related to the job and the employer may not exclude people of a particular race, color, religion, sex (including pregnancy), national origin, or individuals with disabilities.  In addition, the employer may not use a test that excludes applicants age 40 or older if the test is not based on a reasonable factor other than age. 

Medical Examinations and Drug Testing

Employers can require post-offer medical examinations and/or drug testing for job applicants.  Pursuant to Massachusetts law, employers who request or require that a prospective (or current) employee undergo a medical examination by a physician designated by the employer, as a condition to securing or continuing in employment, must reimburse the individual for the medical expenses requested or required. 

Lie Detector Tests

Massachusetts employers may not require or request as a condition of employment that employees or an applicant take a lie detector test.  Massachusetts law defines a “lie detector” as any test, mechanical or written, designed to determine the honesty of an individual. 

Background Checks

A job applicant is usually an unknown commodity.  When an individual applies for a job, employers want to learn more about that individual apart from what that individual tells them about himself/herself.  Background checks provide employers with independent corroboration of an applicant’s qualifications and prior employment and educational history.  If employers do not perform background checks, they will not be able to verify whether what the applicant tells them is true.  Background checks can take many forms, from reference checking to criminal information records. 

Conducting background checks of an applicant can reduce the employer’s risk of liability.  For example, an employer who fails to perform a background check, or fails to perform one thoroughly, could face a claim of negligent hiring should that employee later cause harm to someone. 

Criminal Records Checks

Under the Massachusetts CORI reform law, before an employer can conduct a criminal record check on a prospective employee through the Massachusetts CORI system, the prospective employee must sign an acknowledgement form authorizing the employer to obtain their criminal record information and the employer must verify the prospective employee’s identity by reviewing their government-issued identification.  After receiving the signed acknowledgment form and verifying the prospective employee’s identity, the employer can conduct a criminal background check through the CORI system.

Before questioning a prospective employee about the CORI results, the employer must first provide that prospective employee with a copy of the criminal record it has obtained.  If the employer decides not to hire the prospective employee in whole or in part because of his/her criminal record, the employer must, if it has not already done so, provide them with a copy of the record. 

There are many legal pitfalls during the hiring process for the unwary employer.  Employers will want to ensure that they are up to date on all applicable laws in order to avoid any unintentional violations.


If you have any questions regarding the laws that apply during the hiring process, or any other employment law matter, please contact the attorneys at Royal, P.C.