Interview Questions That Are Illegal To Ask
Hello all and welcome to Lady Justice, a monthly feature where we talk about the law in human terms as it applies to us lady-types.
Disclaimer: Nothing is this column constitutes legal advice and should not be relied upon as such. If you have specific legal questions contact a lawyer in your state — this can be done easily through your state’s bar association.
This month’s topic is interviews and what your potential employers can and cannot ask you. We all have to go to job interviews and you probably have some vague idea that there are things interviewers should not ask, but you may not specifically know what those things are. Have no fear, Lady Justice is here to part the clouds of confusion.
The most important thing to understand about potentially illegal interview questions is whether a question touches on your status as part of a “protected class.” Protected classes are exactly what they sound like, classes (that is, characteristics you may have) that your employer can’t count against you when making employment decisions like hiring, firing or setting your pay. Some of these you probably already know, like race, sex and disability, but others might not be obvious, and the questions interviewers may use to find out if you’re a member of a protected class are even less obvious.
Let’s look at some questions.
“Are you married?”
For many this is the first question that comes to mind when considering inappropriate or illegal interview questions. The legality of this question really depends on who you are interviewing with and which state you’re interviewing in. If you’re interviewing with the federal government (meaning you’re trying to get a federal job), then, yes, marital status is a protected class by executive order. The same goes for some (but not all) states, like Washington and Oregon. Similar protection for parental status (whether or not you have kids) also applies in certain states and when interviewing with the federal government.
It also may be relevant if the interviewer is trying to determine not if you’re married, but the gender of the person you are married to, or if you can legally get married — basically, are you gay? Again, the federal government as an employer, and many states, prohibit discrimination based on sexual orientation. It’s important to check what the law is in your state, because as of now, there is no blanket federal law to prohibit job discrimination on the basis of sexual orientation.
Other red flag questions: “What does your husband do?” “Are you gay?” “Do you have kids?”
“Where are you from?”
This one is tricky too. It’s certainly okay for an employer to want to know where you grew up, but if they are looking for information about your national origin or citizenship status, those are both protected classes under federal law (Title VII of the Civil Rights Act and The Immigration Reform and Control Act respectively), and many state laws too.
Other red flag questions: “What country are you from?” “Do you have a green card?” “Do you have a driver’s license and social security card?”
“Have you ever been convicted of a felony?”
Sure, you’ve filled out this box on probably every job application you’ve ever filled out. But there is a growing movement across the U.S. called “ban the box,” which seeks to limit how employers use background checks and criminal conviction information. An executive order by the Georgia governor just instituted this practice for hiring by the state, so find out what’s pertinent in your state. According to the Equal Employment Opportunity Commission (EEOC) an employer also shouldn’t count a conviction against you if the offense has nothing to do with the job you’re applying for.
“Can I see your Facebook?”
Like with felony convictions, there is a growing movement to ban employers from seeking access to your Facebook or other social media accounts before they hire you. The concern being: it is an invasion of privacy and through these sites an employer may discover that you are a member of a protected class, decide not to hire you and you might never know. Again, it’s important to check the laws in your state. If there isn’t a law against this in your state, and you refuse to give your potential employer your information, it is okay for them to decline to hire you for that reason.
“Have you ever sued an employer? Or filed a claim with the EEOC?”
People who have asserted their legal rights against an employer in the past are protected. If an employer doesn’t hire you (or fires you for that matter) for simply doing what you are entitled to do under the law, such as making a good faith claim of harassment or filing a legitimate safety complaint, that’s called retaliation and it’s super illegal.
“Are you planning to have kids?”
Under a federal law called the Pregnancy Discrimination Act*, you cannot be fired for getting pregnant. Similarly, it is illegal for employers to discriminate against you for reasons related to pregnancy and childbirth, such as if you are nursing or may need to take a protected leave of absence.
“What church do you go to? Do you believe in God?”
This one is a big giant no, as religion is a protected class (also under Title VII). Though the important thing to remember about Title VII is that it only applies to employers with 15 or more employees. If you interview with a small business with fewer than 15 employees, you won’t be protected unless your state has a similar law covering the employer.
“Have you ever been part of a union? Or have you ever been a union steward?”
Another big no-no, as union activity and membership are protected under the National Labor Relations Act.
So, what do you do if you hear these questions? Well, that’s up to you. You can answer and be truthful; you can tell the interviewer you prefer not to answer that question and explain why; or you can answer the question in a way that addresses the interviewer’s concern but doesn’t touch on your protected class.
For instance, if asked, “Are you planning on becoming pregnant in the next year?”, you could say, “No. I’m not.” Or: “I don’t think that’s relevant.” Or: “I assume you’re asking about my ability to balance work and my home life. I can assure you that if I am hired, I will be a reliable and dedicated employee.”
If you feel an employer or interviewer is discriminating against you because of your protected class, you should contact someone to talk out the concern: your HR person at work, an attorney, the EEOC or your State Bureau of Labor.
Until next month!
Special thanks on this article goes to my awesome wife, and A+ employment lawyer, Heidi.
