When illegal interview questions are legal

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My MoneyWatch colleague Dave Johnson recently wrote a post about illegal job interview questions. While he's right that these questions are generally stupid ones and shouldn't be asked, he's not quite correct about the legality of asking certain questions. To double check, I contacted labor and employment lawyer Bryan P. Cavanaugh. He stated:

First and foremost, you are correct that simply being asked a question does not make someone a victim of employment discrimination. Discrimination laws require someone to suffer a concrete harm, such as not getting a job, getting passed up for a promotion, or even being harassed.

When interviewing for a job there are literally thousands of reasons not to hire every single candidate. Proving that the reason you weren't hired was illegal discrimination is almost impossible. You would have to prove that not only were you the best candidate but that the reason you weren't chosen was an illegal one, and not a perfectly legal reason. For instance, you could claim that you weren't hired because you are over 40, but I could successfully argue that I hired someone else because that person worked for Company X in the past and I've had good experience with people from Company X. Unless your interviewer has left a trail of email messages saying, "Don't hire Bob! He's old!" you'll be out of luck.

The problem with the concept of "illegal" interview questions is that, while they may illicit answers that cannot be used in consideration for the job, they are also part of our daily reality.

Your job interviewer knows your race, gender and approximate age as soon as you walk into the room. (And, most likely, as soon as your resume landed in the interviewer's inbox.) There aren't too many female Stephens and if there are two candidates, I can make a pretty darn good guess that Linda is older than Jennifer. Yes, there are cases where gender, age and race are not so obvious. But without airbrushing, most of us look as expected.

Likewise, the marriage and kids question. I wear a wedding ring. So do millions of other married people. I'm not going to take it off for a job interview. Marriage isn't even a protected status under federal law (it is under some state laws), so it's even legal (albeit stupid) to consider it.

The problem with questions about kids isn't that it's illegal to discriminate against people who have them. It's illegal to discriminate against people because of their gender and the Equal Employment Opportunity Commission (EEOC) considers gender stereotypes to fall into that. Attorney Cavanaugh stated:

The status of having children and how many one has is not per se protected. However, the EEOC has been focusing on protecting "caregiver responsibilities," which involves expanding the definition of "gender." Here's how the EEOC's reasoning works. Gender is protected under state and federal law. Gender includes "gender stereotyping," which means discriminating against a man or woman because he or she does not conform to traditional roles or act how a man or woman would be expected to act.

Therefore, if an interviewer learns that a male candidate has children and has the primary caregiver responsibilities for those children, the interviewer cannot refuse to offer the job to that male candidate based on that reason because doing so would be discriminating against him based on the stereotype that man should be out as the bread winners and women should be home caring for the children. Essentially, it would be gender discrimination. Likewise, if a woman is interviewing for a full-time executive position and reveals she has five small children at home, gender discrimination laws protect her from discrimination based on the "stereotype" or traditional societal expectation that a mother of five children stay home with them or at least not take a full-time job.

Since both men and women have children, you could even (technically) refuse to hire anyone with children. (Although you would likely run into a whole bunch of other problems because certain groups tend to have more children than others, and it's illegal to discriminate against people on the basis of their religion, for instance.)

In general, managers should not be paranoid about conversations that wander into "dangerous" territory. And candidates shouldn't stiffen and assume the worst if a hiring manager asks one of the "forbidden" questions. It's doubtful that they are asking with the intent of illegally discriminating. It's more likely that they are making conversation.

Yes, you can deflect the conversation or answer the question you should have been asked. (Example: Have you ever been arrested? Answer: I'm proud to say that my record is spotless -- never been convicted of anything!)

If you're a manager, try to keep your interview questions directed towards finding out if this person is the best candidate for the job by asking questions that relate to the position. But don't panic if you find yourself asking, "Are you a US citizen?" Just follow it up with, "Or authorized to work in the US?" 

Most managers are truly interested in finding the best candidate for the job. They aren't interested in illegally discriminating against you or anyone else. So drop the paranoia and put your best foot forward. And if your foot accidentally ends up in your mouth, pull it out, laugh and continue. It probably won't make a difference.

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