Illegal or Ill-Advised? More on Pre-Employment Interview Questions

Hello again! We are continuing our journey through InterviewLand. Last week we visited the Neighborhood of Illegal Questions. As promised, this week we are heading over toward the Town of Ill-Advised Questions. This part of our trip is tricky though. Why is that? The untrained employer will often end up here without even knowing how s/he got there, let alone that s/he is there in the first place. Some questions seem perfectly innocent and some might be mistaken for illegal questions. Employers often feel at a loss to know whether they have strayed into illegal or ill-advised questions, and if so, how to exit. Fear not! That is the reason for this tour. While I can’t promise a GPS, I will try to provide some type of “road map” after the jump.

Some people will argue that few interview questions are expressly illegal in that the statutes usually will not provide a list of questions that employers cannot ask in a job interview. That said, if the motive behind the question is discriminatory, then the question could still provide the basis for a lawsuit if the candidate does not get the job. Ill-advised questions are those that a candidate can use or attempt to use as circumstantial evidence of discriminatory motive, even though they do not appear to be illegal in and of themselves. Employers are then in a position of having to prove that the motive behind the question was not discriminatory. Even then, however, employers may still be in the Town of Ill-Advised Questions. You may now have turned the corner and inadvertently started walking down Disparate Impact Lane. Huh, what? Disparate what? While I did discuss that concept here and here I will touch on that briefly again now.

Disparate impact refers to practices that, while neutral on their face, have an adverse impact on a  disproportionate  number of one or more groups of people normally protected under Title VII of the Civil Rights Act of 1964, the ADA, the ADEA or similar anti-discrimination laws. Such practices are said to have a discriminatory impact and therefore violate Title VII. The Civil Rights Act of 1991 expressly prohibits such practices as well. One often-cited example of such a practice occurred in Griggs v. Duke Power Co., 401 US 424 (1971) a US Supreme Court case that addressed whether asking candidates if they had a high school diploma had a discriminatory impact vis-a-vis African-American males, few of whom at the time were likely to have a high school diploma. Since the employer could not show that a high school diploma was relevant to job performance or specific job requirements, the Court answered in the affirmative. A question may seem innocent on its face, but if the question can be shown to have a disparate impact on a particular group of people, an employer may still be defending against allegations of discrimination.

Let’s now look at some examples of questions that, at best are ill-advised, and at worst may be illegal:

1. Questions resulting in disclosure of national origin:  Examples of this type of question might be, “What type of accent is that?” “Where are your parents from?” “What languages do you speak aside from English?” “Is English your first language”? These questions can either elicit a response indicating foreign origins, or one that may lead the interviewer to make some discriminatory and even inaccurate assumptions. English may not be one’s first language, but one may still be American born or an American citizen. Either way, these questions more often than not are not job-related, and candidates answering these questions who do not get the job, may see, hear or smell discrimination and file a charge or lawsuit. It is best to avoid such questions unless you can show a job-related reason for them. If so, then, articulating the job-related reason to the candidate may go a long way toward deflecting allegations of discrimination.
2. Questions that could elicit disclosure of age: The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against workers 40 years old and over. Answers to certain questions could give the interviewer an idea of the candidate’s age and could lead a rejected candidate to believe s/he was rejected because s/he is over 40. Some examples: When did you graduate high school/college/graduate school? How long would you plan to stay here if we hired you? Now, you may be thinking, I want someone who is planning to be with me for the long haul. That is reasonable. Next week we will discuss ways to ask questions that allow you to bypass both The Town of Ill-Advised Questions and the Neighborhood of Illegal Questions.
3. Questions that could compel disclosure of a medical condition and/or disability: Title I of the ADA prohibits employment discrimination against those with disabling conditions (assuming they can perform the essential functions of the job with or without reasonable accommodations. Title IX of GINA prohibits eliciting genetic information from candidates and from discriminating against such candidates based on that information. Examples of ill-advised questions in this category: How many sick days did you take last year? Have you ever taken FMLA leave? These questions could also lead to disclosure of workers’ compensation claims, and most states prohibit discrimination against those candidates or employees as well.
4. Questions that lead to disclosure of one’s religion, sexual orientation, ethnicity, marital status or existence of children: The most common questions in this category might be “What organizations do you belong to?” or even “What types of things do you like to do in your spare time”?  Many people may be belong to certain houses of worship or religious organizations, or ones that advance certain causes such as rights of members of the GLBT community. Many people in their spare time like to do things with their spouses, significant others, and/or children.  This type of question could be misunderstood as discriminatory against working mothers, homosexuals, people of certain religious backgrounds, etc. You get the idea, right?

Yikes! These are all seemingly innocent questions. Some of them may be no more than an interviewer trying to “break the ice”. Some may be motivated by practical considerations, such as wanting to know that the candidate will work the necessary hours, be staying long-term, be reliable and show up on time for work, be able to communicate appropriately with co-workers, clients, etc. How does an employer ensure that it can get those needs met and steer clear of these two dangerous places, The Town of Ill-Advised Questions and The Neighborhood of Illegal Questions? Can it be done? Yes, it can! Next week we will look at how an employer can ask questions designed to ensure to meet those concerns. The next leg of our excursion to InterviewLand will be “Employer Best Practices City” —and with that we will be finished with the hokey names –at least for a while! See you back here next week!

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.

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