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Employee Rights: Can An Employer Ask That?

Posted May 7, 2020 | Employment Law

man and woman reviewing resume

You may think employee rights begin once you are hired, but in reality, they begin when you take an interview. While that may seem like an odd concept, it’s true. Your potential employer must abide by employment laws when it comes to the interview process, including what they may ask you. So what are these inappropriate interview questions?

Interview Red Flags: Illegal Questions

Under legislation by the U.S. Equal Employment Opportunity Commission (EEOC), there are certain questions that are dubbed illegal in a job interview. While we know that the hiring and firing, promotion, and wages based upon discriminatory practices are illegal, many employers neglect to follow similar thought processes in the interview process.

Below are common illegal questions you cannot be asked during an interview.

Age-Based Questions

Under EEOC guidelines of The Age Discrimination in Employment Act of 1967 (ADEA), questions, employment decisions, etc., based upon age are strictly forbidden. This includes questions like:

  • When did you graduate from school?
  • Are you comfortable being around younger employees?
  • Are you comfortable being around older employees?
  • Can you rent a car?
  • Do you think your age has ever held you back?
  • When are you thinking of retiring?

National Origin-Based Questions

Asking where someone lives may seem like a harmless question meant to be part of small talk, but in reality, it can be discriminatory, even if it wasn’t intended to be. Under Title VII of the Civil Rights Act of 1964, it is illegal for an employer to discriminate on the basis of race, color, religion, sex, and national origin.

Such illegal national origin questions include:

  • Where is your family from?/How long have you lived here?
  • What country are you from?
  • Where are you originally from?
  • What’s your ethnicity?

Some attorneys may raise an eyebrow to questions of spoken language. It is only permissible to ask such questions about language when it is pertinent to the position being applied for.

Disability-Based Questions

Under the Americans with Disabilities Act (ADA), it is illegal for an employer to discriminate against an individual based upon disability or presumed ability. If you have a disability, it’s important to remember that employers have to make accommodations, so long as you meet the qualifications of the position.

If an employer wants you to know about the physical requirements of the position, they can tactfully list and explain all of the duties of the job, without making discriminatory comments, even if they don’t mean it in an offensive way.

Such questions that are not permissible include:

  • Do you have a disability?
  • Have you ever filed a workers’ compensation claim?
  • Tell me about your disability and how it has shaped you?

Relationship-Based Questions

The only time familial relationships should matter on the job is when you are saying how many family members are on your health insurance. Your employer has no right, nor legal reason to ask you your relationship status.

Such relationship-based questions include:

  • Are you married?
  • Are you single?
  • Do you have any children?
  • Are you planning on having kids?
  • Do you live with anyone?
  • Are you currently pregnant?

While pregnancy may be asked under the guise of workers’ potential exposure to hazardous material or equipment, these questions should still not be asked.

Questions about sexual relationships and identity are also not permitted and should not come up for any reason during the interview process.

In addition, employers may ask if you have any relatives who work for the company. In many cases, that is acceptable, especially if the company is trying to avoid nepotism. However, if the question makes you uncomfortable, chances are it’s not appropriate for them to ask.

The Grey Area: Is It Illegal or Distasteful?

Sometimes questions in the hiring process may raise an eyebrow, and make us squirm in our seats, but does that mean they are illegal? Unfortunately, there is a grey area of these questions and it all depends on how your answers are used.

The following questions may be particularly important to the job you are applying for, even if they make us uncomfortable.

  • Height/Weight
  • Financial Information
  • Unemployed Status
  • Background Checks
  • Citizenship
  • Medical Questions & Examinations

However, sometimes they are also just illegal.

Navigating Interviews In New York

Interviews are stressful enough. But when a potential employer asks discriminatory questions or makes you feel uncomfortable, you have legal rights. Do not let the behavior continue. If you suspect discrimination, or you are not chosen for a position based upon discriminatory behavior by the interviewer, you need legal counsel. Contact Brown Kwon & Lam today.

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