Can They Really Ask That?
Both the job application and the job interview process ask lots of questions. Questions provide employers with many of the answers they need in order to make good hiring decisions. As a job applicant you may have been asked questions that just don’t feel right. This article is an exploration of job interview questions, how to recognize those that are proper from those that are improper and how to respond to the improper ones, if and when they are asked.
What Does “Legally Protected Under the Law” mean? Various federal and state laws have established certain legally protected categories including but not limited to age, race, national origin, and sex. While it is illegal for an employer to base a hiring decision on these and other similar categories, many of these laws do not specifically make it illegal to ask a question about them. Let’s try to make sense of it all.
Are you over 40? If so, you are protected by the Age Discrimination in Employment Act of 1967. This law prohibits employers from making hiring decisions on the basis of the job candidate’s age. They are permitted to ask however, if the information is needed for things like background checks or for certain jobs that have a minimum age requirement (for example, you have to be at least 18 to tend bar in most states).
Interviewers are not permitted to ask if you are married, who you live with, how many children you have, who cares for them when you are at work and so on. Your marital/family situation should have no effect on your ability to do the job and the employer’s decision to hire you should not be based on these factors.
On the other hand, if the job calls for periodic travel or heavy overtime the employer will want to know if you are willing to take on these duties. Asking if you agree to work overtime is an appropriate question. In this case it is not necessary to ask direct questions about any family or family obligations you may have. If you choose to mention that you have family obligations and bring up your spouse or children, the door is open to further discussion about your situation and the interviewer has done nothing improper in this case.
Under federal law – The Civil Rights Act of 1964 (which is overseen by the Equal Employment Opportunity Commission – the EEOC), questions about race and/or color are illegal. There is no subtlety here, employers must not treat any job candidate unfairly based on skin color, hair color or texture, facial features, parents, minority group affiliations, race/color of spouse, etc. No one may be turned down for a job based on any of the factors described here.
There are no “on the other hands” for this category. Fundamentally, all questions of race/color are illegal and should not play any part in hiring decisions.
The Civil Rights Act of 1964 and the Pregnancy Discrimination Act of 1978 expressly prohibit employers from making hiring decisions on the basis of sex, pregnancy, childbirth, and related conditions. Employers cannot ask if you have children, or if you are planning on starting a family or if you are pregnant. They are not permitted to inquire about your children’s ages, or what kind of child-care arrangements you will have for them if you are hired. They also may not ask about your spouse’s or significant other’s concerns about your working hours or company travel. With regard to gender identification they should not ask you to indicate “male/female” or “Mr./Ms./Miss” on any application or preemployment paperwork. No one may be asked things like “are you straight or gay?”
In 2020 the U. S. Supreme Court ruled that the 1964 Civil Rights Act has been extended to include LGBTQ employees for purposes of discrimination in employment. LGBTQ job applicants are afforded the same protections. As you can see there are plenty of subjects that are forbidden to ask regarding sex and gender identity. There are, however, certain questions within this category that an interviewer may legitimately ask. These include questions about overtime, company travel, and work schedules. Here are some questions that are proper to ask:
- Can you work overtime, nights, or weekends?
- Are you willing to relocate?
- Travel is expected to be at approximately 10%, is this, OK?
- Are you able to start at 8 a.m.?
These are legitimate questions for any business, and it is up to the candidate to respond truthfully. If the candidate has concerns about any of them, it is up to them to inform the employer and explain why. The answers may have to touch matters of sex, family, etc. but they are proper to ask.
It is illegal for employers to discriminate on the basis of religion. Questions about religion and religious beliefs may not be asked during a job interview. Some improper questions include:
- Do you attend church on a regular basis?
- What is your religion?
- Will you need time off for religious services, holidays?
- I see you graduated from Boston College, which is a Jesuit institution. Are you Catholic?
Questions such as these should play no role in deciding about a candidate or their qualifications. However, there is one legitimate question, although not directly asked about religion, that still fits within this general category, “Are you available to work on weekends?” Although it may touch on someone’s religious observances, it is proper to ask if it is an integral part of the job.
Where you or your ancestors come from should be of no consequence to an employer looking to fill a position. The Civil Rights Act of 1964 establishes that employers may not discriminate against prospective employees because they come from a different part of the world, have accents, or represent a particular ethnicity. Nor may they treat unfairly anyone married to a person of a certain national origin. Improper questions in this category include, but are not limited to:
- Are you an American citizen?
- I hear an accent, where are you from?
- Where were you born?
- What language is spoken in your home?
- (Asked of a woman) – Your last name sounds foreign, are you married to someone from another country?
- What is your native tongue?
- You say you read, write, and speak Russian. How is it you are familiar with this language?
There are, of course, questions around national origin that are legitimate. Most of these center around federal law that deals with a person’s right to work in the United States.
Questions such as the following are proper and appropriate:
- Are you eligible to work in the United States?
- If you are not a U.S. citizen, do you have the legal right to remain in the states on
a permanent basis?
- If we hire you, will you be able to provide proof of employment eligibility?
Under the law, employers generally cannot ask disability-related questions or require medical examinations until after an applicant has been given a conditional job offer. In the past, this information was frequently used to exclude applicants with disabilities before their ability to perform a job was evaluated. Here is a sampling of the questions that should not be asked of a job candidate:
- What is your medical history?
- Have you ever had a serious illness?
- Do you take any prescription drugs and for what purpose?
- Do you have any disabilities?
- I see that you wear hearing aids, tell me about your hearing loss.
- Have you ever been on disability or workers compensation?
- How many sick days did you take on your last job?
There are a few appropriate questions regarding disabilities that employers may ask, primarily because the answers may impact the person’s ability to do the job:
- Are you able to perform the essential duties of the job, for example bending, lifting, and carrying up to 25 pounds or standing on your feet for extended periods of time?
- Have you used illicit drugs?
If a candidate voluntarily discloses a disability or it is obvious that they have one (e.g. the person arrives in a wheelchair), the interviewer may ask if they would need any reasonable accommodations to perform their work. Once a person is hired, their voluntarily disclosed disabilities must be kept confidential by the employer.
If a job offer is made, the employer may ask questions about the person’s disability, but only to the extent that they can function on the job and do it without the possibility of causing harm to themselves and others.
In many states, there are laws that prevent prospective employers from asking job candidates about their current or previous salary. Salary history can be used to eliminate candidates from consideration if the employer feels their compensation expectations are too high for the job. Also, this information has been used by some employers to keep women from attaining the same salary as men for the same job. If a woman previously earned less than the employer is currently paying a man for the same job, they might only offer the female candidate what they previously earned and not the higher salary.
State laws are changing and being updated all of the time. We recommend you visit https://www.paycor.com/resource-center/states-with-salary-history-bans to see the latest information on salary history bans in your state.
How do you respond to an improper question?
We also want you to understand that despite the impropriety or illegality of certain questions, some employers will still ask them, and you should know how to respond. Being well informed will help you – as a job candidate – to make the right decision about an employment opportunity. Here’s your dilemma. Do you want the opportunity badly enough that you will answer questions that are clearly improper or illegal, or will you take an ethical stand regarding the appropriateness of the questions, or will you take a third path that may lead you to the job without compromising your integrity. Let’s explore each one.
1. Answer the Question(s)
This is the least satisfying of the three because you have to answer questions that the interviewer has no right to ask and no right to know. You understand that the answers you give might directly result in not getting the job, but you want it enough to go along with the program.
2. Take an Ethical Stand
Take a stand and tell the interviewer the question is inappropriate and might be against the law. Give the interviewer an opportunity to rephrase the question to one that is proper or if this does not work, refuse to answer and be ready to walk out of the interview. It is not likely that you will not be offered the job but consider whether this is the type of company you would want to work for anyway.
3. The Third Path
Turn what might be a negative question into a positive. Let’s say the question is about age. You might want to emphasize how your expertise in the subject area of the job would be an asset to the company. That you would be able to offer both guidance and mentorship to other members of the staff. You could bring in an especially relevant and hopefully a recent C.A.R. story, describing how you handled a situation that a less experienced person may not have brought to a satisfactory conclusion.
How you respond is up to you. But always keep in mind that you are not the only job candidate in this situation. While the interviewer is questioning your fit for the job, you are also interviewing them! Is the job right for you? Do you like the person across the table from you? Will you fit into their culture? You have every right to analyze the job and who you report to. If that person insists on asking inappropriate questions, do you wish to work for them? Be a decision maker and make the right choice.
A Word About those EEOC Questionnaires on Job Applications
All of us have responded to the mostly voluntary EEOC questions that are part of job applications. They are there for a reason. Both the federal and state governments want to obtain employment and hiring data on the protected status groups discussed in this article. Employers are obligated to gather this information from job applicants and to send it to the EEOC. None of it may go to the company’s recruiters and hiring managers to be used in making hiring decisions. It is always kept separate from the hiring process, and it is OK to complete the forms.
Preparing for a job interview is hard work. Customizing resumes, preparing C.A.R. stories, researching the company, and reaching out to your network are all part of getting it right. Don’t let an inappropriate question “come out of left field” and leave you without a response. Think about the areas of protected status that you might fit into and be ready to respond if you get an improper or illegal question.
About the author:
Stuart Weiner works with small to medium-sized medical and dental practices to help them develop and maintain strong compliance programs that will enable them to meet their obligations under both federal and state healthcare regulations.