With the national economy expected to continue in its recovery, it is also expected hiring gains will continue. According to numerous media outlets, hiring was better than expected in December 2015, with 292,000 jobs added to the economy.
However, even with a robust job market, discrimination in the hiring process is a reality. This commonly occurs when employers ask questions or seek information that either violates state and federal employment laws or otherwise gives rise to an employment discrimination claim if the applicant is not hired. It is not uncommon for such questions to be asked out of a benign motive by an interviewer just trying to make small talk or break the ice. Nevertheless, these questions can put job candidates in a difficult situation. They want the job and in most cases need the income to maintain a standard of living but for good reason are afraid to push back when confronted with unlawful or discriminatory requests for information.
That being said, it is important for job candidates to know what questions are improper and how to deal with them, and it is important for employers to know what questions to avoid and why. While this article does not constitute legal advice, here are a few tips.
Questions about marital status - While questions or discussions about your family may be raised in idle small talk, specific inquiries by a potential employer about marital status may give rise to a gender discrimination claim if it manifests an employer’s policy or intent that forbids or restricts the employment of married women that is not applicable to married men.
Questions about disabilities - In today’s workplace, it is increasingly common to hire workers with disabilities. Questions by employers to job applicants about their disabilities are generally not allowed, except that it is lawful for a potential employer to ask an applicant, for example, if he or she is able to lift a certain amount of weight if such lifting is an essential function of the position. A potential employer may also ask if a reasonable accommodation is needed for an “open and obvious” disability. However, questions likely to elicit information about a disability may only be asked after an offer of employment has been made to the individual.
Questions about family and children - As with the questions about marital status, if a potential employer’s questions about family and children express any limitation or discrimination in hiring on the basis of sex, the employer has a problem. For example, questions about childbearing or pregnancy have been found to be sex-based, as have policies of not accepting applications from women with preschool age children while accepting applications from men with preschool age children.
Employers should understand that asking such questions may give rise to a discrimination charge if the applicant is not hired and even if the employer had no discriminatory motive for asking the questions. For applicants, being asked seemingly discriminatory questions may be offensive and frustrating, but wisdom, not the law, dictates how you should respond. Telling the interviewer his or her question is illegal and discriminatory will probably ensure you are not hired, and if the question was not asked for a discriminatory purpose your response will almost certainly insult the interviewer. It is better to answer the question or diplomatically inform the interviewer you are uncomfortable answering the question. If you are not hired and you believe the information you provided was the reason for not receiving the job, you should talk to a board-certified employment attorney immediately.