Tuesday, June 2, 2015

ILLEGAL INTERVIEW QUESTIONS: Should You Answer???


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/

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