Weighing the legality of interview questions – What the interviewer can and cannot ask you
You’re in the middle of a job interview and so far the job seems perfect. You and the interviewer are connecting and you even manage to confidently answer a question concerning job strengths. Then suddenly, you’re thrown a curveball. You’re asked “Do you have any kids?” “What type of holidays do you observe?” and “Do you want to be addressed as Mrs. or Miss?”
Among friends, these questions are harmless, but in the context of a job interview they can be considered illegal. Why? According to a number of federal employment laws, these questions can be deemed evidence of illegal discrimination. (See “Questions that could discriminate.”)
Bob Mitchell, a human resources consultant in West Des Moines, Iowa, who is a certified senior professional in human resources (SPHR), says the basic rule of interview legality is simple. “Any questions that are not job-related can be considered illegal.”
Not all employers are familiar with employment laws and may not even realize the potential for discrimination. Other employers may feel justified in asking certain questions to protect their business interests.
Jan Burch, SPHR, also a human resources consultant in West Des Moines, Iowa, recalls one instance in which an employee was asked if she had daycare arrangements. “The employer asked because the previous employee had quit due to daycare problems. The supervisor wanted to be careful not to run into the same problem again,” says Burch.
For certain jobs, employers can ask about previous arrests or convictions and notify applicants that a background check is required, which is within their rights. “If someone is being hired as a security guard or is working with children, it’s in the company’s best interest to ask such questions,” says Burch.
What should you say?
If you are asked a possibly discriminatory question, should you refuse to answer? Mitchell suggests, “If asked, `are you married?’ Tell them `yes, I am.’ Then ask them, `can you explain to me how that impacts this position?'” Asking this question sends a signal to the prospective employer that you won’t put up with discriminatory questions for the remainder of the interview. The best way to diffuse discriminatory questions is to reassure employers that you’re a competent assistant. Be sure to highlight your qualifications and ask them to look at your past job history, which ultimately tells more about your potential than details of your personal life.
Be wary of small talk
Small talk might generate questions about your personal life. If you want to volunteer information, that’s your choice. “It’s truly amazing how creative supervisors can get when asking questions,” says Mitchell. You may be asked what you do in your free time. If you respond “I go to my child’s soccer games,” or “I spend weekends fishing with my husband,” without warning, they’ve just hooked you into telling them about your personal life and may use that information against you.
Mitchell says when employers say, `Tell me about yourself,’ they are usually looking for leadership skills. One way to answer that question is to mention your membership in a procure fundraising drive.
If there is blatant discrimination during an interview, you have a right to walk out. “If you feel you’ve been discriminated against, take good notes of your interview session and then consider consulting an attorney,” says Nancy Segal, JD (legal director of Families That Work: The Program on Gender, Work & Family at American University’s Washington College of Law).
A good resource for employment rights is the United States Equal Employment Opportunity Commission (EEOC). (Visit their Web site at www.eeoc.gov/index.html.) This federal agency enforces employee discrimination laws and provides guidance to the public. Segal notes that once the EEOC has been contacted by an applicant who feels discriminated against, the EEOC is responsible to examine evidence, make a determination of `no cause’ or `reasonable cause’ and either make recommendations, or help secure legal counsel.
Winning a lawsuit because someone is not being hired is often difficult to prove. “Employers can always state `competency’ reasons as to why someone wasn’t hired,” says Segal. The executive director and professor of law at American University, Washington College of Law, Joan Williams, JD, recalls one case in which a worker was told she got the job. “She came in to discuss specifics and at that time, told them she was pregnant. Suddenly, the job became `unavailable’ after she disclosed her pregnancy.”
Williams cautions, “Women need to be aware of patterns of questions that are only asked of women and not men.” He adds that some women take off their wedding rings because some employers believe that a married woman might soon become pregnant and not be a productive worker.
Sheep in wolf’s clothing
Applicants should become familiar with a form that looks discriminatory but isn’t–the Affirmative Action Voluntary Self-Identification form. Applicants may say to themselves “They’re asking me my gender and race–isn’t that wrong?” Generally these forms should be separate from the employment application, and are only used by human resources personnel to meet federal guidelines and to develop their own affirmative action plan. Employers who are federal government contractors are required by federal law to compile and report affirmative action data. Additionally, some companies have certain agreements with federal or state agencies, while others voluntarily adopt affirmative action plans.
Do I want to work for them?
Beware of prospective employers who persist in asking discriminatory questions. “This can often send a signal that this is not the right place to work. It means they don’t know much about employment law,” says Burch. “If hired, one could easily encounter other types of discrimination down the road.”
The best way to guard against discrimination during a job interview is to prepare in advance–good advice for both managers and interviewees. For managers, if you have a list of questions to ask, don’t stray far from the list. Stick to the areas of competency and not areas of possible bias that may affect decision-making. For interviewees, know your rights, rehearse in advance for possible discriminatory questions and be vigilant for any non-job-related questions. By following these guidelines, you’ll hit any curveball question right out of the park.
Questions that could discriminate
1–What is your birthplace, nationality, your spouse’s or parents’ descent? (But note, it is ok to ask, “what languages do you speak fluently” if pertinent to the job.)
2–Do you have any pre-existing medical problems, physical disabilities or handicaps? (Applicants may be asked about their ability to perform specific job functions.)
3–Do you have any children? Do you plan on getting pregnant? Do you have childcare arrangements?
4–Does your religion prevent you from working holidays or weekends?
5–Are you married, divorced, engaged, single or gay?
6–What is your gender/sex?
7–Where does your spouse work?
8–Are you considered to be a part of a minority group?
9–What is your age? (It is ok to ask if you are of legal age.)
10–Are you a native-born citizen? (You can be asked if you are a citizen of the United States or if you have a legal right to remain permanently in the US.)
Important note: There is no law that says an employer is prohibited from asking an illegal question. Just because a question is asked doesn’t establish intent or mean the employer has violated a law–usually it’s up to the courts to determine if the question was used in a discriminatory manner.
Reprinted from Jan/Feb 2003 CMA today with permission from the American Association of Medical Assistants.
Jacqueline Wilson, CMA, is a writer based in Des Moines, Iowa. Wilson has 17 years experience as a CMA and is currently employed as a communications specialist for an insurance brokerage firm.
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