ample, EEOC guidance suggests that comments made during the hiring process by employers regarding the nature of an applicant's surname should be avoided. Such questioning may violate the national origin protection of Title VII and could be regarded as discriminatory.1 Similarly, questions "about job-related injuries or workers' compensation history are prohibited at the pre-offer stage."2 On the other hand, many permissible applicant questions do exist, and the EEOC does not restrain employers from asking them. These range from inquiries regarding past applicant performance relating to job functions and work attendance habits to past or present illicit drug use. The list of permissible questions is not exhaustive.
             Perhaps not surprisingly, employers do not always welcomed these guidelines. Some believe that certain EEOC guidance policies do not reflect a practical application of the principles of Title VII and claim that the EEOC "goes way too far"3 in its requirements for them to be considered reasonable. In one controversial interpretation, "the Equal Employment Opportunity Commission's position is that an employer is precluded by [EEOC interpretation of] Title VII of the Civil Rights Act of 1964 from asking a potential employee about arrest records. The rationale behind this position is that arrests do not prove guilt and that screening out applicants with arrest records has an adverse impact on minorities."4 Such a stance on the part of the EEOC places employers in somewhat of a double bind so that "every stage in the hiring process can subject the employer to legal liability, including discrimination claims [and] negligent hiring."5 We now turn our attention o the subject of discrimination in employment hiring.
             Discriminatory treatment at the pre-offer stage of hiring generally falls into one of two categories: disparate treatment and disparate impact. Disparate ...