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ABA Family Legal Guide
Law and the Workplace
The Hiring Process
What types of questions may imply discrimination?
Direct questions relating to an applicant's age, family background, or religious affiliation may indicate discrimination. Questions or comments based on stereotyped notions may also imply discrimination.
Interview questions should relate to the requirements of the job and the applicant's qualifications, work experience, and history. Even when the information sought is related to the job, the interviewer must be careful that the way the question is asked does not imply discrimination. For example, an employer trying to determine whether a female applicant is going to stay with the company for the next few years should not ask, "Do you plan to get married?" or "Do you plan to have children?" or "What kind of birth control do you use?" More direct, job-related questions, such as the following, permit an employer to obtain the desired information without being discriminatory:
- We are looking for employees who will make a commitment to the company. Is there any reason you might not stay with us for the next few years?
- What are your career objectives?
- Where do you see yourself in five years?
Similarly, suppose an employer is trying to determine a female job candidate's commitment to living in a particular area of the country. It is better to ask, "Do you intend to stay in the area?" rather than "Is your husband's employer likely to transfer him?"
If attendance is the issue, questions such as "Does your husband expect you to be home to cook dinner?" or "What will you do if your children get sick?" are indirect and inefficient. It is more direct to ask, "How was your attendance record with your prior employer?"
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Side Bar - Bona Fide Occupational Qualifications Title VII allows an employer to make a hiring decision based on sex, religion, or national origin if the employer can prove that a particular sex, religion, or national origin is a bona fide occupational qualification (BFOQ) for the job in question. The ADEA also allows the employer to make a hiring decision based on age if the employer can prove age is a BFOQ. The employer must prove that his or her hiring decision falls within the very narrow limits allowed by the BFOQ defense. The employer must show both that
The evidence that the employer presents must be objective and not based on stereotyped beliefs about persons in the protected class. Years ago some airlines tried to defend their decision not to hire men as flight attendants on the basis that males were unable to provide reassurance to anxious passengers or give courteous, personalized service. The court held that even if this were true, the ability to reassure and give courteous service did not relate to the essence of the employer's business, which was the safe transport of passengers. The BFOQ defense applies in very limited circumstances, such as for actors or fashion models. |
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