Make sure this doesn't happen to you. In 1992, the court ruled in favor of plaintiff John Otero and ordered Walmart to pay a total of $157,500 for "reckless indifference" to his federally protected rights and unlawful discrimination when an interviewer asked him a disability related question. Yikes!Conducting job interviews should be simple. Asking some general questions about the candidate to get to know him or her better should be harmless, right? Well, it depends...
The Equal Employment Opportunity Commission (EEOC) uses a guiding principle to decide whether or not an interviewer should be asking a question, "Can the employer demonstrate a job-related necessity for asking the question?" The EEOC will use the intent of the question and the utility of the obtained information to decide if any discrimination has occurred.
The only times when discriminatory employment practices are permitted is when a person's "religion, sex, or national origin is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business or enterprise". For example, hiring a female janitor to clean the women’s bathroom.
Something as seemingly innocent as a question on demographical information could end up with an impending costly lawsuit.
Here are 8 types of interview questions that you should avoid asking an interview candidate unless necessary:
Disabilities.According to the Americans with Disabilities Act (ADA), employers are limited in making disability-related inquiries during the pre-offer, post-offer, and during employment stages. These are questions that elicit information about a disability. These include questions like “Have you ever had a disability?” or questions on the prescription medicine they are taking.
Genetic Information.Under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), hiring companies and other employment-related organizations such as employment agencies, labor organizations and joint labor-management training and apprenticeship programs are heavily restricted from requesting for, requiring or purchasing genetic information.
Gender Identity and Sexual Orientation.While gender identity and sexual orientation aren’t explicitly mentioned as bases for discriminatory practices, the EEOC and courts have explicitly mentioned that discrimination based on these factors can be counted as discrimination based on sex. If knowing the candidate’s gender identity and sexual orientation has absolutely nothing to do with the job, then it’s best not to ask about them.
Religion.In general, questions about an applicant’s religious affiliation or beliefs are viewed as non-job-related under federal law. However, if the religion is a bona fide occupational qualification, employment based on religion is permitted. For example, the employment of religious teachers in religious educational institutions.
Race and Ethnicity.As with gender identity and sexual orientation, Title VII of the Civil Rights Act of 1964 also prohibits discrimination based on race. Questions regarding race and ethnicity should not be asked about unless it is a BFOQ.
Military Discharge.While not exactly illegal, employers are strongly advised against asking related questions as EEOC has said that basing hiring decisions solely on military discharge status violates Title VII as it has been found to work against the African-American community in particular.
Educational Requirements.It is normal for jobs to require a minimum level of education. After all, the educational certificate does imply that the applicant has the basic level of knowledge necessary to perform some basic job functions. But if the requirements is higher than what is needed to successfully perform the job, it may violate Title VII as it can potentially and disproportionately excludes certain racial groups.
Marital Status and Family-related Questions.Such questions have the potential to violate Title VII as they may be seen as evidence of intent to discriminate against people such as women with children, pregnant women, or single parents.
As you can see, even though employers do not have any ill intent when seemingly asking certain types of questions, it can be perceived as discrimination. Just bear in mind to avoid asking unnecessary questions unless they are BFOQs.
Check out our full guide on how to interview hourly workers!
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