Illegal Job Interview Questions: What to Do When Asked

As an employer, it is important, if not imperative, to ensure that you are hiring qualified individuals who can perform competently and contribute to the company. However, many of the questions often used to determine an applicant’s competency and ability to do the job are actually unlawful, and many of the inquiries mentioned below may amount to federal or state constitutional violations. Therefore, hiring parties should be aware of those questions that are inappropriate or illegal, and they should learn how to rephrase these inquiries in ways that will allow them to obtain the information they want, while not offending or violating the rights of the candidate. Moreover, prospective employees should also make themselves aware of such unlawful questions, and of the employer’s purposes for asking them. This way, they may either refuse to answer the particular question or redirect the question in a manner that will allow them to provide the information sought without having to disclose the things that they do not want to, or even have to, reveal. An employment lawyer should be consulted for more information.

Equal Protection Clause

If the hiring party is not a private employer, it may be subject to the Equal Protection Clause of the Fourteenth Amendment or the Due Process Clause of the Fifth Amendment (applicable to the federal government). For example, if an applicant is discriminated against on the basis of a fundamental right or suspect classification, the employer’s explanation for doing so will be evaluated under a strict scrutiny standard, which is the most exacting form of judicial review. If a quasi-suspect classification is involved, such as gender, intermediate scrutiny will be used, and if the classification does not affect a fundamental right or involve a particular classification, the rational basis standard will apply. In order for strict or intermediate scrutiny to be used, there must be intent on the part of the public hiring agency to discriminate. Intent may be proved by a law or policy that is discriminatory on its face, a discriminatory application of the policy, or a discriminatory motive behind it.

Questions involving a person’s citizenship or place of birth are unlawful and involve discrimination as to national origin.1 In fact, although the Immigration Reform and Control Act of 1986 requires hiring parties to confirm the legal status of newly hired employees, a legal alien may not be discriminated against on the basis of citizenship.2 Therefore, rather than disclosing their national origin, potential employees should simply answer with whether or not they are legally entitled to perform work in the United States.

An employer may not ask questions regarding marital or family status.3 The motive behind such queries is generally related to the presumption that women are typically the primary care givers, a role which may affect their presence and tardiness in the workplace.4 The fact that such questions are usually asked only to females makes them clearly unlawful.5 A more appropriate way of forming the question may be, “Is there anything that would interfere with your regular attendance at work?” Moreover, candidates who are asked about their marital or family statuses may choose to respond by saying, “If you are concerned with whether there is anything that may prevent my regular attendance, I can assure you that I will have no problem being present and on time.” Similarly, employers may not ask about an applicant’s maiden name or spouse’s name, as they are irrelevant to job performance and could be used to discriminate on the basis of gender, religion, or national origin.

First Amendment (applicable to the states through the Fourteenth Amendment)

Generally, public entities may not infringe on a person’s First Amendment right of association or religion unless particular criteria is met and justifications are valid. Therefore, it makes sense that an employer may not ask what clubs or organizations an applicant belongs to, or whether he or she attends church.7 If an employee is asked such a question on a job application or during an interview, he may wish to mention any professional or trade groups to which he belongs, and that are relevant to his ability to perform the work, since this is probably why the employer asked the question in the first place. Further, questions about race and religion are off limits as they may deter an applicant whose religion prohibits weekend work.8 If a question like this is posed, the applicant should inform the employer whether he can be available, and the employer should indicate that the business makes reasonable efforts to accommodate religious practices.

Both employers and job applicants alike should consult an employment lawyer to learn more about what questions are considered unlawful. An employment lawyer may also have more suggestions as to how to formulate questions and answers in a more appropriate manner.

About the Author:

Marcelo Dieguez is a practicing lawyer at Diefer Law Group and specializes in employment law and as a sexual harassment lawyer in Orange County and throughout California.

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