With so many people looking for jobs in today's economy, it's more difficult than ever for employers to pick and choose which of the many available and qualified applicants to hire. In trying to decide between several qualified applicants, employers may be tempted to start asking more personal questions. Resist this temptation or you may find yourself on the wrong end of a charge of discrimination.
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An employer's legal obligations in a job interview vary depending on several factors. For example, if an employer has 15 or more employees, all applicants who are qualified for the job must be treated in the same manner and given the same consideration without regard to their race, color, sex, religion, age (40+), disability genetic information or other characteristics which are protected by law. In other words, all qualified applicants must be given equal employment opportunities.
Training managers on compliance with the equal opportunity laws for interviewing is imperative to avoiding discrimination claims and may help provide a defense if the employer is later sued. For instance, managers should be instructed that there are some questions that, absent some job related reason, should never be asked on a job application or in an interview:
- How old are you?
- What is your race?
- Do you go to church? What are your religious beliefs?
- Are you male or female?
- Do you have children? Do you plan to have children?
- Are you pregnant?
- Do you have any health problems?
- Are you a United States citizen?
Such questions may seem obvious as being problematic. Nevertheless, employers should train their managers not to ask these questions (do not assume that they know not to!) as it is unlawful to make employment decisions based on the answers. *
In addition, there are a number of other less obvious inquiries that should be avoided absent some legitimate job-related reason. Such questions may be illegal because they constitute an end-around the plainly unlawful questions or may negatively impact certain protected classes. Some of these prohibited questions include:
- When did you graduate from high school? (age)
- Where were you born? (citizenship/national origin)
- Will you attach a picture to your application? (race, color, sex, disability, religion)
- Does anyone in your family have health problems? (disability/genetics)
- Are you on any medications? (disability/genetics)
- Have you ever been treated for drug or alcohol abuse? (disability)
- Have you ever filed a workers' compensation claim? (disability)
- How many sick days did you take at your last job? (disability/genetics)
- What is your height and weight? (disability/genetics)
- How long have you lived at your current residence? (race, sex)
- Do you rent or own your residence? (race, sex)
- Do you lease or own your furniture? (race, sex)
- Have you ever filed bankruptcy? (race, sex)
- What is your credit rating? (race, sex)
- Do you own a car? (race, sex)
- Do you have childcare arrangements? (race, sex)
- Where does your spouse work? (sex)
- Can you provide a reference from a religious leader? (religion)
- Have you ever been arrested? (race)
By steering clear of these and other questions that do not relate directly to the job, employers are less likely to draw a discrimination charge and more likely to make a sound hiring decision.
* There are some exceptions for certain employers, such as public employers and government contractors that are required to track statistics such as race and sex and comply with affirmative action plans.
