Willette Coleman ©2015
Job interviews can be stressful
enough without having to respond to illegal questions. Knowing something about these questions and
your rights is an important career life skill.
For example, seemingly harmless queries, such as “Are you married?” or
“Do you plan to have a family?” are personal questions that violate the U.S.Equal Employment Opportunity Commission’s (EEOC) Genetic InformationNondiscrimination Act (GINA), Title II. Although your marital status isn’t relevant
to a specific job performance, some job applications still instruct candidates
to check or circle the “Mr., Mrs., or Ms.” label. Under this law, married female applicants are
NOT obligated to mark the “Mrs.” label. Another seemingly benign
question, “Who is your closest relative to notify in case of an emergency?,”
asked in this manner, is illegal. It
should be asked
a)
only
after you’re hired, and
b) phrased: “In case of an emergency,
who should we notify?”
Age
Asking
your age violates the 1967 Age Discrimination in Employment Act (ADEA) . But, heads up, shifty interviewers might
ask: “When did you graduate from high
school or college?” Some version of this
question may even be on the application.
Also, asking older applicants about their ability to take instructions
from younger supervisors, and younger applicants about working with older
workers is illegal. It IS LEGAL, however, for
interviewers to ask younger applicants “Are you over 18?” to determine her/his
work eligibility. See statistics on Age
discrimination law suits here.
Citizenship
“Are
you a U.S. citizen?” violates the 1964 Civil Rights Act, Title VII that prohibits
employment discrimination based on race, color, religion, sex, or national
origin. Nonetheless, this question is
seen on nearly all job applications.
Since it could violate the “national origin,” component in the Act, it’s
illegal to be questioned about any other languages you read, speak or write
fluently, UNLESS it’s a job requirement, in which case, it be noted as a
requirement in the job description. Specifically, the EEOC states:
“Employers should not ask whether or not a job applicant is a United States
citizen before (author’s emphasis)
making an offer of employment.”
HM managers are advised to add the following statement on employment applications:
“In compliance with federal law, all persons hired will be required
to verify identity and eligibility to work in the United States and to complete the
required employment eligibility verification document form upon hire." {Italics and underlines are author’s
emphasis.}
Criminal
Record
A
tricky question is, “Have you ever been arrested or convicted?” It’s tricky because “Federal law does not prohibit employers from
asking about an applicant's criminal history,”
according to EEOC. The law DOES,
however, “prohibit employers from using
this information to not hire or to fire, which may violate the 1964 Civil
Rights Act, Title VII.” Note: The operative word is “may” violate. What is clear
is that the EEOC enforces this law because statistics show that people of color
are arrested and convicted at significantly higher rates than whites. Although some HR managers might state that
answering the question won’t remove the candidate from consideration, it’s
reasonable to doubt employers will honor this disclaimer. Recent “ban the box” campaigns are demanding
this question be eliminated from federal and state job applications and
interviews. Target, Walmart and 13 states, including
Washington, DC., are reported to have removed the question. See details here.
Disability
The
Americans with Disabilities Act (ADA),
Title I and Title V, Sections 501 and 505 “prohibit employment discrimination
against qualified individuals with disabilities, including medical history, in
the private sector, and in state and local governments,” so a question like "Do
you have a disability that would affect your job performance?" is illegal. "There are strict limitations on when a
covered entity can ask job applicants or employees disability-related questions
or require them to undergo medical examination, and all medical information
must be kept confidential,” according to government policy. Since employers can’t discriminate on the
basis of anyone’s use of a legal product, “Do you smoke?” and "Are you an
alcoholic?" are illegal questions. Alcoholism
is classified as a disability, according
to ADA.gov.
“ An alcoholic
is a person with a disability and is protected by the ADA if s/he is qualified to perform the
essential functions of the job. An employer may be required to provide an
accommodation to an alcoholic.” Details here.
Chrom.com advises HR managers that, “Even if your company enforces a strict no-smoking
policy, you cannot ask applicants if they smoke cigarettes.” Employers concerned that hiring a smoker
might be detrimental “can only address issues directly related to job
performance.” The law allows
interviewers to ask, "Do you drink?" but not, "How much do you
drink each week?" or “How often do you drink?” Again, phrasing is key. Under ADA,
other illegal questions include:
·
How
many sick days did you take last year? or How many days of work did you miss
last year due to illness?
·
Have
you ever been injured on the job or filed a workers' compensation claim?
·
What
kind of prescription drugs do you take? or Do you take medication for any
reason?
·
Are
you in good health? or Do you have cancer, AIDS, epilepsy, diabetes, etc.?
·
Have
you ever been treated for drug addiction? or How often have you used illegal
drugs in the past?
·
Are
you currently or have you ever been treated for mental illness? or Have you
ever had psychological counseling?
Military
Asking
applicants, “Are you in the National Guard?” or “Were you honorably discharged
from the military?” violate the 1964 Civil Rights Act. You can be asked if you are a veteran, as
seen on most applications, especially with the campaign to specifically hire
veterans. In this instance, you’ll want
to show how your experience in the military can benefit the company.
Religion
Questions
about what holidays you celebrate (e.g., Christmas, Good Friday, Ramadan, or
the Solstices), or “What is your native tongue?” also violate the 1964 CivilRights Act, Title VII. Nonetheless, applicants may have noted that
the citizenship question is still seen on nearly all job applications. Crafty interviewers might phrase questions
that can throw applicants off guard to reveal his/her religious affiliation, as
in, “Do you belong to a club or social organization?” HRWorld,
in instructing HR managers on how “to turn litigious questions into harmless,
legal alternatives,” suggests phrasing the question as: “Are you a member of a professional or trade
group or other organization that you consider relevant to your ability to
perform this job?” However, sometimes,
“rephrasing” could raise concerns of deception, thus, legality.
To Answer or Not to Answer - This is the
question.
You
have a right to refuse to answer illegal questions, BUT, doing so could risk
you appearing to be uncooperative or confrontational. In racist (and sexist) environments, people
of color, especially Africans throughout the Diaspora including
Afro-Latinos/Latinas/Hispanics, are generally stereotyped as “confrontational”
whenever he or she exercises their rights.
Refusal to answer an illegal question could be added to the litany of
excuses for an employer to discriminate.
Avoiding or deflecting the question may not work either because the
interviewer could think you look shady. Since
questions MUST RELATE to your ability to perform the tasks required for the
job, it’s okay for applicants to ask:
“Is this question relevant to the job’s requirement?” Or, “No disrespect, but that question seems irrelevant
to the job’s requirements.” Again,
depending on the interviewer’s mindset, this response, no matter how gently you
put it, could be interpreted as being uncooperative.
If
possible, use the question as a platform to re-enforce how your skills connect
to the job’s requirements, although that could be impossible with a “Do you
smoke?” question. “Most hiring managers
are untrained in the legalities of interviewing,” according to career
advisers. So, if you are blindsided by
an illegal interview question, “Answer without revealing that you’re offended,”
says the advisers, and, since you should interview the employer to the same
degree they are interviewing you, you may want to consider what it would be
like to work where an employee is poorly trained for a job that has legal
consequences. This lack of assiduousness could be part of the company’s culture.
Watch What You Say
Some
interviewers have excellent interpersonal/conversational skills wherein you
relax and respond to what seems like non-invasive questions like “What
off-the-job activities do you participate in?”
Consequently, you could reveal information that opens the door to an
illegal question and “harm your candidacy by giving the ‘wrong’ answer”
cautions USA Today,
or giving too much information. For example:
In a comfortable setting, an applicant mentions that she teaches Sunday
school. The candidate opened “Pandora’sbox,”
so to speak, that could invite the interviewer to ask about her religion, and the
applicant wouldn’t be in a position to protest.
Of
course, when you’re focused on making a good impression in an interview, you
may not consciously think about how you could unwittingly implicate yourself,
or about the legality of questions. As
you can see, “the devil is in the details,” which is why some prior knowledge of
illegal job interview questions is vital. Also, state or county labor laws may restrict
other illegal job interview questions, so, investigate your state’s laws with
an Internet search (e.g., type in “New York State job interview laws”). Furthermore, laws change. When first passed in 1990, ADA applied only to law firms with 25 or more
employees. But, on July 26, 1994, the
law began to apply to all companies (e.g., employment agencies, labor
organizations, and joint labor-management committees) with 15 or more employees.
The
bottom line is, all interview questions should sync with your qualifications and
experience to perform the tasks in the job for which you’re applying. So, during an interview, ask yourself: “Is this question RELEVANT to the job’s
requirement?”
Learn
more about your rights, here. http://www.eeoc.gov/laws/
