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During the job interview process, is it legal for an employer to ask an applicant what foreign citizenship(s) he holds, if any? In other words, citizenship that is not necessarily relevant to the job (i.e. the applicant has already established his legal right to work where the job is located)

I understand this might be necessary when working for certain companies, for example Lockheed Martin, but are there laws about exactly when it is and when it is not legal?

  • Why on Earth could it be illegal? Anybody can ask anyone any questions. However, discriminating on the basis of holding other citizenships is illegal, is this what you wanted to ask about? – Greendrake Nov 6 '17 at 5:03
  • I believe there are questions you are actually not allowed to ask – CodyBugstein Nov 6 '17 at 13:00
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    Where is the job interview taking place? You example suggests the U.S. but you don't clarify your question. – ohwilleke Nov 6 '17 at 15:04
  • @Greendrake it's a commonly held belief in the United States that such questionsare illegal, but it seems that this belief is actually an oversimplification. – phoog Nov 6 '17 at 16:00
  • In the UK, I have to prove and the company has to check that I have the right to work in the UK. Currently by far the easiest way for UK and EU citizens to prove their right to work is to show their passport. – gnasher729 Nov 7 '17 at 20:28
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It is illegal in the US, according to the EEOC. Eventually an employee may be asked about their ability to legally work (when the accept the offer), via Form I-9 and E-Verify, but the employer cannot ask while interviewing. Form I-9 does not ask for all of your citizenships, it asks if you are a US citizen, or a permanent resident etc. and they ask your permit numbers if you are not a US citizen. Thee is a generic caveat that is allowed, so that potential employees will know that they may need to provide papers:

In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification form upon hire.

One exception is the federal security clearance form where you have to confess to all of your present and past citizenships.

  • The EEOC page doesn't say it's illegal to ask, only that "most employers should not ask." – phoog Nov 6 '17 at 3:52
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    Yes: it means they interpret asking to be a violation of the "national origin" clause. At an administrative level it is illegal, though the matter has not been resolved by SCOTUS. – user6726 Nov 6 '17 at 3:57
  • Which "national origin" clause? Also, I don't think they actually mean to say that it's illegal to ask because if that's what they meant then they would just say so. – phoog Nov 6 '17 at 4:36
  • @phoog Discrimination on the basis of national origin is prohibited by the U.S. civil rights acts for all but the smallest employers. Asking about a dual citizenship would be one way to probe the impermissible criterion of national origin in a situation where it was not a bona fide qualification for the position. – ohwilleke Nov 6 '17 at 15:06
  • @ohwilleke I understand that, but that's still not the same as saying it's illegal to ask. It seems that asking puts the employer in a precarious legal position, but that the question itself is not per se forbidden by the law. The EEOC page suggests that national origin discrimination by smaller employers is covered by the INA, but I did not find the relevant section after a relatively brief search. – phoog Nov 6 '17 at 15:58
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Its always legal

A potential employer has an obligation to comply with employment law which includes determining if an employee is eligible to work in the country.

For example, Australians and New Zealanders can work in Australia (and New Zealand) without a visa - everyone else needs one. Therefore an employer needs to know your nationality to determine if they have to check for a work visa.

Assuming that the question is asked and answered and the person is legally allowed to work: is it illegal to discriminate based on nationality?

Yes and no. In Australia, it is illegal to discriminate on the basis of national origin but not on the basis of citizenship per se. It is difficult to imagine circumstances where discriminating on the basis of citizenship would not cross the line into effectively being on national origin but you never know.

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    In the US, in general, discrimination based on national origin is forbidden by federal employment law, so prospective employers should be asking about work authorization rather than nationality. Many aliens are authorized to work in the US. Logically, the same would apply in Australia and New Zealand: they don't need to ask about your citizenship; they only need to ask about whether you're authorized to work. – phoog Nov 6 '17 at 3:18
  • @phoog sure, but asking "Are you Australian?" leads to way less confusion than asking "Do you have a legal right to work in Australia?" Asking is not illegal - discriminating based on the answer is. – Dale M Nov 6 '17 at 3:23
  • "Asking is not illegal - discriminating based on the answer is": fair enough, but defending against a discrimination suit can be expensive. If you don't ask, the unsuccessful prospective employee has less justification for a suit. But as you correctly note, that still doesn't mean that it's illegal to ask. – phoog Nov 6 '17 at 3:53
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    @DaleM I don't think you understand my question. I'm asking if it's alright to ask about other nationalities, not relevant to the work status – CodyBugstein Nov 6 '17 at 4:02
  • @CodyBugstein that aspect of your question is reflected only in the title, not in the body. – phoog Nov 6 '17 at 4:38

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