What Do You Mean I Can’t Ask That Question????!!!!

Have you ever hired an employee? Do you expect to in the near future? There is so much confusion around what questions you can and cannot ask on an interview. We are told that  many seemingly harmless questions are illegal. Then someone gets sued or gets a Notice of Charge from the EEOC. Doesn’t an employer have a right to determine whether an applicant is qualified for the job anymore? Am I not entitled to ascertain whether a candidate will be a “fit” in terms of company culture? The answers: yes and yes! But how do I do that if I have to worry that every question I ask may be the “wrong” question that will land me in court? If you have these and other related questions, you’ve come to the right place! Over the next few weeks The Emplawyerologist will be visiting what we’ll call InterviewLand. The first leg of our journey will be a visit to the Neighborhood of Illegal Questions (aka The Neighborhood). These questions are illegal in and of themselves. In future posts we will visit the Town of Ill-Advised Questions and the City of  Best Pre-Employment interview practices, aka Hope City (not to be confused with City of Hope). OK, time is fleeting, so let’s start this excursion after the jump!

Before we get into the nitty-gritty, I must make  a seemingly meaningless distinction. Some questions are, per the express terms of a statute or regulation, forbidden. Those are clearly illegal questions. Then there are questions, which, while not expressly forbidden by statute are still called illegal questions because it is illegal to base an employment decision on the person’s response. In other words, it may not really be illegal to ask the question, but basing a decision on the person’s response to the question is illegal. If I ask such a question I have to prove that my decision was based on another factor, and not that  answer. I am therefore better off not asking such questions. (We may briefly return to this point in a later post.)OK, we are moving on, so fasten your seat belts and I will try not to make this ride too bumpy! Here are the major groups of illegal questions:

1. Questions expressing/suggesting discriminatory motivation based on gender, and not based on bona fide occupational qualifications (BFOQ)’s:  This is probably the most populated area in the Neighborhood. As you will know from previous posts, Title VII of the Civil Rights Act of 1964 is the most comprehensive employment discrimination statute. (See 42 USC Section 2000e-(1) to 2000e(17). While Title VII does not specifically prohibit any pre-employment interview questions, the EEOC, the agency charged with enforcing Title VII, through regulations, interprets Title VII as forbidding gender-based questions such as those related to pregnancy, childbirth or child care. The 8th Circuit Court of Appeals in 1983 backed the EEOC’s position  as to such questions in King v. Trans World Airlines 738 F.2d 255, as did the Second Circuit Court of Appeals in Barbano v Madison County 922 F.2d 139 in 1990. Questions about marital status,ability to work with men, opinions on traveling with men and childcare arrangements when travelling, especially when asked of female but not male applicants, will likely get an employer in trouble, as they did in Stukey v US Air Force  790 F. Supp. 165 (SD. Ohio 1992). On the other hand, when an employer who asks prohibited pregnancy-related questions on an interview can show that in fact it rejected the pregnant applicant for other, non-pregnancy-related reasons, it will escape liability (though it will still spend lots of money defending such a case!)  Bottom Line:  No matter how practical and job-related you think these questions are, don’t ask them, especially if you would not ask them of male candidates!
2. Questions as to existence of a disability:  Under Title I of the ADA employers with 15 or more employees may  not discriminate against qualified individuals with disabilities. Unlike Title VII, the ADA expressly forbids employers in the pre-offer stage from asking questions likely to reveal the existence of a disability. This prohibition includes questionnaires, interview questions and medical examinations. You therefore cannot (in the pre-offer phase) ask a candidate whether s/he needs a reasonable accommodation to perform the job, whether s/he has ever filed a workers’ compensation claim, what prescription drugs s/he is currently taking or how many days s/he was sick in any given time period. This prohibition applies to all applicants, not just those that you know or suspect are disabled. Having said that, can a non-disabled ADA claimant recover damages if an employer asks such forbidden questions, if the claimant cannot present damage of actual harm arising out of such questions? The circuit courts seem to be saying “No’. Griffin v Steeltek Inc 261 F.3d 1026 (10th Cir. 2001]) and Green v Joy Cone Co. No: 03-3859, 2004 US App. LEXIS 16612 (3d Cir 2004) are two such cases.  Post-offer, you can ask such questions, provided you ask the same questions of all applicants offered the same type of job.
3. Requests for Genetic Information: The Genetic Information Nondiscrimination ACT (GINA) specifically disallows employers with 15 or more employees from requesting genetic information of applicants about themselves or their family members (For a review, read What Does GINA Have to Do With Employment Practices?) Courts, and the EEOC will, not, however hold an employer responsible when it inadvertently obtains such information or the applicant voluntarily discloses it. While GINA is still fairly new, the EEOC has begun filing lawsuits to enforce it. (For review, read The Emplawyerologist’s May 2 post, How Are Employers Faring (In Court) Under GINA?)
4. Questions about Criminal or Credit History: Some states and localities have passed laws forbidding questions about an applicant’s criminal history prior to either an interview or extending a job offer. The EEOC also recommends that employers refrain from such a practice until either granting an interview or extending a conditional job offer. I covered this topic in “Ban the Box” Laws: Should You Change Your Job Application? The underlying reasoning here is that certain ethnic groups are statistically more likely to have criminal convictions and a blanket exclusion of those with criminal convictions without regard for relevance to job functions or business necessity has a discriminatory impact on some minorities. Similarly, women and minorities are statistically more likely to have negative credit histories and may suffer discriminatory impact from blanket exclusions in this area as well.  Many states have limitations here too. The idea is that the employer should first talk to the applicant and evaluate him or her based on job qualifications and other relevant considerations first.
5. Questions that May Amount to Unfair Labor Practices:  The NLRA  guarantees workers the right to join unions and get together with other workers to discuss work conditions without fear of management reprisal. Contrary to popular belief, most private employers, even those that are not currently “union shops” are covered by the NLRA.  Practices and pre-employment questions that might discourage workers from organizing, negotiating a union contract or similar activities are “unfair labor practices” under the NLRA .  The National Labor Relations Board (NLRB) enforces the NLRA,  and will bring unfair labor practice charges under such circumstances.
6. Questions about Willingness to Take, or Results of, A Polygraph Exam: The federal Employee Polygraph Protection Act (EPPA) bans polygraphs as pre-employment screening devices–in the private sector. If you ask candidates or employees to take a polygraph and/or reject a candidate who refuses, you may face  Department of Labor charges and be sanctioned up to $10,000 per violation, or be defending a private lawsuit, where punitive damages are a possibility. Rights under this statute cannot be waived. While there are not yet any reported cases by candidates requesting damages based solely on asking questions about polygraph exams or their results,  such practices are illegal and will expose you to potential liability, so, don’t do it!

Well, that concludes our visit in the Neighborhood of Illegal Questions. Next week we will visit the Town of Ill-Advised Questions (OK, I know these names are hokey, but hopefully they help illustrate my point, so work with me, please!)

Do you use staffing agencies to meet your staffing requirements? If so, click here to read my latest post about how the ADA  applies   to them.

Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.

Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.

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