C. Illegal Interview Questions

During the interview, women are often the target of illegal hiring questions. Years ago, employers could ask almost any question they wanted of a job candidate. Questions could be asked about marital status, credit history, childbearing plans, and age. Such questions are now illegal. Questions pertaining to marital status, sexual preference, pregnancy, future childbearing plans, unwed motherhood, child care, and the number and ages of children (for example, "Who will look after your child if you are hired?" "Do you have children under the age of five?" "Do you have a boyfriend?" "What form of birth control, if any, do you use?" "If you become pregnant while working would you continue to work?" "Are you married?" "Does your husband support your decision to work?") are illegal.

Employers are allowed to ask questions to learn about a candidate's motivation and personality. Such questions can relate to former job responsibilities and outside interests. However, inquiries into an applicant's sex life are illegal, and this applies to all private employers, employment agencies, labor organizations, and training programs. In addition, each state has its own discrimination laws, which often go further in protecting the rights of female applicants during job interviews.

Job interviews must be conducted in accordance with formal objective guidelines for evaluating a job applicant's qualifications. Skills, experience, motivation, ambition, and interests are generally permissible subjects of preemployment inquiries. However, women are often singled out because of their gender, and it is a violation of Title VII for employers to require information about child care arrangements from female applicants only. Saying to a female applicant, "Joy, given the fact that you've got one child entering kindergarten and another in junior high school, do you really want to take on a job with so much overtime?" is illegal. It is better for the employer to state that the job involves a lot of overtime and ask all applicants if they have a problem working in excess of 40 hours per week.

Tip:The same is true with respect to an inquiry relating to an applicant's anticipated duration of stay on the job or anticipated absences. Such questions are allowed only if both male and female applicants are asked the same questions.

Innocent questions often result in employers having to defend charges of discrimination filed with the EEOC and various state agencies, including the Human Rights Commission and the Attorney General's Office. When charges of discrimination are filed, the burden of proof usually falls on the employer to show that all preemployment questions are job-related and not discriminatory. If discrimination is found, an applicant may be awarded damages, including a job offer, attorney costs, and other benefits. Following enactment of the Civil Rights Act of 1991, successful claimants may also demand jury trials and receive compensatory damages (i.e., money paid for emotional pain and suffering) of up to $300,000, depending on the employer's size, and punitive damages, plus legal fees and money for expert witnesses who testify at the trial. Thus, employers face lost productivity, poor publicity, and expensive legal fees costs and verdicts for sloppy pre-employment interviewing techniques.

Although the federal Americans With Disabilities Act of 1990 has been in existence for more than seven years, many employers are not knowledgeable about the law's sweeping effects in the area of pre-employment inquiries. The ADA is designed to eliminate discrimination against persons with disabilities in connection with a wide range of activities. The employment provisions apply to employers with 15 or more employees (state law often reduces that number). The ADA expressly forbids employers from conducting preemployment medical examinations or making preemployment inquiries about disabilities. The EEOC enforces the ADA through investigators who are trained to uncover whether employers ask questions at the pre-offer stage that are likely to elicit information about a disability. Such questions, whether asked in person or on an employment application, are illegal.

Additionally, according to the Older Workers Benefit Protection Act, employers are forbidden from discussing or asking any questions pertaining to a person's age. Thus, if you are an older (i.e., over 40) job applicant and are told that you "lack formal education credits," "are overqualified," "are overspecialized," or that the company is "looking to hire someone with a more recent college degree," speak to a labor lawyer if you are denied a job. Recent cases demonstrate it may be illegal for a company to refuse to hire an older female applicant by arguing that being overqualified for a position means that the applicant is unqualified for the position. (Note: Simply showing that a younger individual was hired over a qualified older applicant does not prove age discrimination if the employer can demonstrate the decision was based on an honest evaluation of the candidate's qualifications, e.g., the prospective employee would be bored or likely to leave upon finding a better job, or both.)

The chart beginning on page 7 illustrates interview questions that are legal, as well as those found illegal under EEOC guidelines and state regulations. Note that the same questions may be either legal or illegal depending on the employer's intent in asking. For instance, asking a woman her maiden name is legal if the employer needs the information to verify past employment records, but not if the intent is to check family background. Thus, the chart should be viewed only as a guide since some questions that are indicated as being illegal may be asked in certain situations (for example, where the applicant is applying for a security-sensitive job).

The potential illegality of such questions must always be examined in the context in which they are asked. (Note: And once you are hired, an employer may have a legitimate business reason for asking your marital status, since it may be relevant for family health insurance coverage and tax deduction purposes.) However, the chart is instructive because female applicants often do not understand the illegality of commonly asked questions.

Looking at the questions in this chart, it is apparent that many female job applicants are exploited, since employers often ask illegal questions routinely. It is also illegal for an employer to ask for photographs or references from clergy before hiring and to ask discriminatory questions after the formal interview has concluded (e.g., during lunch after the interview but before the decision to hire has been made, when saying good-bye, or when talking to the applicant in the waiting area).

Tip:Answers to post-interview questions are not supposed to be considered during the hiring process, but the ramifications of asking illegal questions in informal settings are just as serious. Avoid volunteering information in such informal settings where possible.