In this Issue:
Illegal Interview Questions
Most illegal interview questions are asked in true ignorance of the law, in ignorance of what questions are proper, and in ignorance of how the information could be used by others in a discriminatory way.
It’s important to understand the difference between an illegal question and a criminally-liable question. Even though a question may have been stated in an illegal form, it does not mean that a crime has been committed. There is a difference between criminal and civil liability. For there to be criminal liability, it requires establishing a motive or intent. Most questions are asked in ignorance, not intending malice. Yet there can be civil recourse, even when there was no criminal intent or malice.
What is the proper response? Any attempt by the candidate to “assert their constitutional rights” will merely throw up the defense shields and put an end to mutual consideration. So, answer in brief and move on to the next topic or ignore the question and redirect the discussion. Best to move on to other things, however, if you see it as blatant and offensive, you have every right to terminate the interview and walk out.
There are certain taboo areas that employers should be aware of:
- Questions related to birthplace, nationality, ancestry, or descent of the applicant, their spouse or parents are deemed discriminatory. Residence is acceptable. Languages spoken are permissible if it relates to the position. Ask about relatives only in the context of who to contact in case of an emergency.
- Questions related to sex, marital status, pregnancy, birth control or childcare are not allowable.
- Questions related to race or color should not be asked unless required by law for recordkeeping purposes. Photographs of an applicant are inappropriate and can be deemed discriminatory.
- Questions regarding age are permissible but not a good idea because age discrimination can later be alleged. The Age Discrimination in Employment Act prohibits discrimination on the basis of age against anyone over the age of 40.
- Questions related to creed or religion, church membership/affiliation or religious holidays observed are also a no-no.
- Questions related to physical disabilities or handicaps should be avoided. Inquiries regarding health of the applicant are prohibited until a conditional offer of employment has been made.
- Questions regarding citizenship should be limited to whether the person is a citizen and has the legal right to permanently reside in the US and work here
- Questions regarding an arrest record should only be asked if it relevant to the specific position.
- Questions regarding sexual preference should be carefully avoided. There is no federal law that prohibits employment discrimination against homosexuals but check state and local laws to avoid any potential problems
Sample Questions That May Be Asked:
- How do you intend to get to work?
- Do you have the legal right to remain permanently in the US?
- Are you willing to relocate?
- Do you have any family, business or social obligations that would prevent you from working on a daily basis or working overtime or prevent you from traveling?
- Can you or are you willing to lift”X” number of pounds?
- Are there any other names under which your employment can be verified?
- What foreign languages do you speak, read and write?
Sample Questions That May Not Be Asked:
- What is the nationality of your parents or spouse?
- How did you learn to speak a foreign language?
- What complexion is your color or skin?
- How close to retirement are you?
- What religious holidays do you observe?
- What parish do you belong to?
- Did you ever have any other name than the one you are using now?
- Of what clubs have you been a member?
- Do you plan to marry?
- Do you plan to have children?
- Who will take care of your children?
Any questions should not be asked only of individuals of a certain race, sex, age, etc. but uniformly applied or not at all. Further, the key question regarding discrimination is whether the information you are seeking bears a relationship to their ability to do the job and is a condition of employment or a bona fide occupational qualification.
Bob Harrington Associates 