- March 19, 2012
- Posted by: Seth Heyman
- Categories: Business Law, Employment Law, Startups
There has always been confusion amongst employers regarding the types of questions they may legally ask during a job interview. Further muddying the waters are the many media outlets whose non-attorney pundits at times offer misleading information. For example, in this recent CBS MoneyWatch post, the writer claimed that there are numerous topics which employers are not “legally allowed” to address in an interview, including age, sex, religion, citizenship, marital status and age.
The simple fact is that asking a job applicant these types of questions is not so much illegal as inadvisable. For example, there is no law prohibiting an employer from asking about an applicant’s race, sex, religion, marital status, and age. However, asking such questions could lead to legal issues because they may show evidence of discriminatory intent, which could come back to haunt you later.
Take, for example, the case of a 55 year old job applicant that was casually asked her age during an interview. Although the applicant had an excellent resume, the interviewer didn’t believe that the woman’s qualifications were as good as other applicants, and for this reason the job was offered to a younger, more qualified applicant.
The rejected applicant then files an age discrimination claim against the employer, and used the ill-advised question, coupled with the firm’s hiring of a younger person, as evidence of discriminatory intent.
In fact, there are relatively few questions that the law expressly forbids employers from asking during a job interview. Under the Americans with Disabilities Act, before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Under the Genetic Information Nondiscrimination Act, an employer may not ask a job applicant about his or her “genetic information,” which includes family medical history.
Also, at least according to the NLRB, an employer may not ask questions about an applicant’s former union membership or union preference.
The bottom line is, regardless of whether they are illegal or illegal, employers should avoid interview questions that are not job-related, especially if they impinge upon issues relating to an applicant’s protected class status or other private matters that have little or nothing to do with the available position.