Sometimes, they can be very sly about getting around the illegal questions. At one place I interviewed years ago (which was situated inside a mall-like facility housing a local Baptist university), they asked me what I did in my spare time. “For example, what do you do on a typical Sunday morning?” Now, if that’s not asking if I’m a steady churchgoer, I’ll eat my hat.
The clue is the possible intent of the question being asked with respect to the law.
For example, asking how old you are during an interview may be discriminatory under disparate impact and disparate treatment. A better question would be to ask if the applicant means the minimum age requirements for the position as required by law. If the applicant is hired, the employer will know the applicant’s actual age (tax forms, etc.), but that will be after being hired. Age does not enter the picture during the job interview.
The offered link is not a good source for information in that it does not address EO laws and regulations as they are enforced by the EEOC and the courts.
This doesn’t seem to me to be an issue at all. Students applying for entry to a PhD program are not interviewing for employment. Students will often be employed by the university during the course of their studies (for example, at UCLA where I went to graduate school, graduate students were promised the availability of teaching assistantships for at least one year as support) but the interview of the beginning student determines not employment, but acceptance to the school or to the faculty member’s lab.
Probably the most important aspect of this is that while being a graduate student may be your profession for years, you do not get paid to do it.
On the other hand, universities have policies that determine how to avoid discrimination in selecting students and public universities may also have laws they must abide by in selecting students; but these laws may differ from the laws regulating employment.
If I may ask, what questions were asked in the interviews of potential students that were outrageous? Did they likely violate university policy or the relevant laws?
I concur with ReverseCowgirl on this point. The EEOC investigates claims of discrimination–not illegal interview questions. Similarly, disparate impact and disparate treatment are both types of discrimination.
In order to prove disparate treatment, one would have to show that one was treated differently because they were a member of a protected class. In order to prove disparate impact, one would have to prove through statistical comparisons, that the challenged practice or selection device has a substantial adverse impact on a protected group.
In other words, you have to show that adverse action was taken against you.
One might make out a *prima facie * case for disparate impact, for instance, if one could show that people 40 and over, the class protected by the ADEA, are less likely to apply for a job because of the age question. The key here is the statistical proof. And notice that if the statistics showed that people 40 and over were over-represented, people 39 and under would have no cause of action under the ADEA because they are not protected.
Similarly, one could make out a hostile work environment case if the interviewers not only asked for an interviewee’s age, but also made jokes about it.
Do you have any cites to back up your position?
Because RCG’s link refers to statements made by the EEOC about this subject. Can you cite any cases or regs that say that interview questions=discrimination?
Qualification. Some states make it illegal to even inquire about some topics. Here is an example from Michigan.
Gfactor, my reading of the Michigan law is that it is not illegal to ask the questions, but rather it is illegal to formalize the questions in a prepared interview document. Although their use of the term “oral inquiry” is unclear to me, it seems to be referring to a set of questions that you read to the applicant.
(Bolding mine.)
I read it this way:
My handy dandy bookEmployment Law in Michigan: An Employer’s Guide indicates that the Michigan Civil Rights Commission reads the provision to prohibit interview questions, too.
I’ve never seen it enforced that way, which is why I didn’t make this point sooner. I had to go look it up. But if I encountered that rule in a vacuum, I’d probably read it the way that TellMeI’mNotCrazy does.
And thanks to Gfactor for backing me up.
If the Michigan law makes it illegal to ask certain questions, then I suspect the law itself is illegal or at least unenforceable. IANAL, but in most cases there needs to be some intent. Consider this question: “Oh, I see you went to Southeast Western Louisiana State Tech. So did I. What years did you go there?” The interviewer is simply looking to see if there are mutual connections, but it is also a question that implies age. Is it illegal? Surely not. I just can’t imagine that it would be unless you can show that it was used to discriminate somehow.
it is not possible to follow all of the laws that are on the books today. If you were to even try you would have to spend all of your time perusing law books and journals instead of doing something productive for society like servicing your customers and paying your employees. Anyone who would file an EEOC complaint over being asked if they are married or whether they have kids is a troublemaker (or trublmakr if you will) and you are only setting yourself up for heartache if you hire them. If your employees are going to run to the authorities every time you make a mistake or there is a dispute instead of standing on their own two feet and arguing why a certain policy or act is wrong (not legal or illegal) then they are of no use to you and you would be better off just closing your doors than filling your workforce with that type of individual. It is also wrong to accept a job and continue to interview for other jobs. Did you tell your prospective employer that you had recently accepted another position? Would you feel comfortable leaving your present employer in the lurch when they have already treated you better than your prospective employer? Is there anywhere they could file an unfair employment practices suit against you? Of course they can’t, but how would you feel if you had spent time and energy interviewing applicants only to have someone who has accepted the job turn around and leave so that you have to start all over again?
Small business people view the government much like a natural disaster. If they put you out of business then you pick up the pieces and go do something else but no amount of propitiation will stay their wrath and it will only waste your resources in the interim. When you are working 16 hours a day to meet your payroll you aren’t going to pay someone to work against your and their best interests. It’s not fair to your other employees who depend on you for their livelihood.
That having been said, what I usually ask is “tell me something about yourself”. Almost everyone volunteers the information you are so upset about. Personally, I look for single moms. They tend to take their work more seriously because they have more at stake. But that is the only thing you have going for you. Everything else you mentioned in your post falls under the heading of “my worst nightmare of an employee.”
I suspect that they see it either as making it illegal, or leaving open a bunch of grey areas and loopholes - a crafty HR person could easily ask that same question, for no reason other than to use that in his/her hiring decision, and claim “small talk”.
I am also NAL but I don’t think lack of intent has much to do with whether a person is guilty of committing a crime? I always thought it worked the other way around - commit a crime without “meaning to” and you’ve still commited a crime. Intend to commit a crime without succeeding, and you’ve committed a crime.
The inquiry you mention is a good example of one that does not **attempt to elicit ** age. One could get a rough idea of someone’s age that way, some of the time. But as you say, the intent is lacking.
In this particular case, educational background is a fair and relevant inquiry. The employer is entitled to verify the background, and would need attendance dates to do so. So in addition to establishing mutual connections, there is also a bona fide reason for asking the question. Moreover, it would be important to place the dates of college attendance in context. The employer would want to see what the applicant did with the college education. And they would be entitled to ask questions about it. If the degree is ten years old, for instance, and the applicant has never worked in the field, the degree is not very relevant.
But your point is well-taken. As **ReverseCowgirl ** pointed out, the rule is not strictly enforced. The Civil Rights Commission isn’t going to chase after every employer that tries to make conversation with an applicant. They focus on cases where there appears to be some discriminatory intent.
OTOH, it would not be “illegal” for them to enforce the regulation very strictly and limit inquiries such as the one that you mentioned. It would be expensive, and it would probably drive businesses out of the state, sure. But I doubt it would be illegal; just incredibly stupid and unworkable.
Well this is a hijack.
A couple points though:
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We are not talking about criminal law. At all.
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There are different kinds of crimes. Most require some sort of* Mens Rea*. That is the state of mind component. Yes there are crimes that you can commit without “meaning to.” But it depends on the type of crime.
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If you intend to commit a crime and fail, you are guilty of attempt, which brings us full circle. If you attempt to get illicit info, you risk being charged with violating the statute. If not, then you are probably safe.
Hope this helps.
The illegal question is the basis for a discrimination claim. If there is no specific age requirements for a position (and identified as such in the job announcement) asking a person’s age during an interview sets the stage for a potential discrimination case down the road. Asking a generic question whether a candidate meets the age requirements for the job does not.
RCG’s link supports the claim that asking someone’s age during an interview, “will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.” So why ask the question in the first place, especially when it is irrelevant to the job requirements?
The issue is one of intent. Unless the question being asked has a direct relation with the duties of the job, an employer runs the risk a discrimination case down the road.
Agreed. ReverseCowgirl’s point was that it was not illegal–not that it was a good idea. I don’t know of any employment lawyers (I have discussed the point with dozens of them, btw) who would recommend to an employer to ask irrelevant interview questions just for fun. The point is that under Title VII, if an employer asked the question and did not discriminate based on the answer,the applicant would not have a valid claim against the employer.
Of course, if the employer asked the question in Michigan, the employer might still have problems.
Interestingly, this post avoids the questions that everyone thinks are “illegal” (which are not illegal under federal law or the law of my own state - it sounds like they are in Michigan), but admits to doing the actual illegal act - discriminating on the basis of gender and family status. It would normally be tough to prove, but any single male who doesn’t get a job from you, files suit, and makes a discovery request that elicits this post is going to be very happy. (Of course, it’s still not clear how the courts would deal with discrimination in favor of these particular traditionally disadvantaged groups).
Yes. A good point.
As has been stated many times on this board, anyone can sue anyone else over anything. That’s not the same as saying they will win.
It’s sort of a numbers game. Even if you carefully avoid each one of these “illegal questions”, you can be sued. It’s unlikely you’ll lose, but you can be sued. If you happen to ask one or more of these questions, but don’t use the answers in determining who gets hired (no actual discrimination) you are raising the possibility that you will be sued, opening yourself to an EEOC investigation, and increasing the likelyhood of losing in court. Even having a written policy of not hiring Baptists, doesn’t guarantee a lawsuit, but does increase the possibility.
I guess my point is (if I have one) is that job interviews are nerve wracking enough without everyone worrying about some little gotcha question popping out.
It’s interesting to note that this all started with my nitpick of **ReverseCowgirl’s **quibble.
Some grad students do get paid. She is in the biosciences, she got a stipend while she was doing her studies. It is unclear to me whether that stipend was for class, or lab, or what, but it was there.
They asked the usual bad stuff: Do you have kids, are you planning to have them, etc.