Be In The Know: What Employers Are Not Allowed To Ask

This blog is copyright 2010 Pathfinder Writing and Career Services LLC
Right now, there are a lot of job seekers who have been out of work for awhile and are starting to get desperate. If you find yourself among them, there might be a certain threshold that you encounter during the job search process that could include an employer crossing a line, perhaps even asking a question that is inappropriate or illegal.

So what do you do?

On one hand, you desperately need the money and will practically do anything to get a job, any job, that pays the bills.

But conversely, if the interview is where everyone is supposed to be on their best behavior (employer included), and the employer is demonstrating bad judgment by asking illegal questions, then do you really want to work there? It could be an indicator of a toxic work environment.

Or is it?

For organizations that have an established human resources department with clear policies and procedures, a question that is out of line truly is a rarity. The professional in that position usually takes exceptional care to make sure all legal requirements are followed to mitigate company exposure to potential lawsuits.

But, for the smaller ‘mom and pop’ operations, oftentimes, where there isn’t a specific human resource department, that means that the owner or manager is the one going through the interview process, and oftentimes, it’s more of a muddling affair than a neutral, professional approach.

That’s where some managers get into trouble by asking the wrong question, albeit unintentionally (or even on purpose!) which lead to violation of state and federal employment laws.

As a job seeker, you have to try and determine what the background of the hiring scenario is and make some calculated decisions if you find yourself in the awkward position of being asked an illegal question.

Should you answer it or not?

Being forewarned is also being fore-armed, and going into an interview knowing specifically what constitutes a legal question is extremely empowering.

In general, any question that inquiries directly to a person’s age, arrest record, citizenship, family status, marital status, military background, national origin, religion or creed, membership, residence, relatives, race or color, sex, name, photographs, pregnancy, disability, workers’ compensation, or sexual orientation are illegal. There are certain permissible inquiries for each, but many of them can only be asked either when a job offer is being extended and this is part of the application process, or asked around those issues… for example, an employer can’t ask a person a question as to a current pregnancy, and any medical history related to pregnancy, but may ask about anticipated absences.

For a specific list of illegal questions and appropriate ones that employers may ask, you should consult your state employment, wage and hour division, or human services departments for a detailed list.  There are also many resources on the Internet that can be referenced as well.

However, if you find yourself at the end of a question that leaves you squirming at the illegality of it, you have technically three options:

1) Choose to answer it. By ignoring the illegality of the question, you are putting yourself at risk with your answer as a candidate, as the employer may have a hidden agenda.

2) Choose not to answer it. Instead, be assertive and state: “I don’t see how this question impacts my ability to do the job, and I should alert you that this question is actually illegal under federal and state employment laws.” Or, you can refuse to answer the question, which is perfectly within your rights, but obviously, the employer might take this the wrong way and see you as confrontational instead.

3) Choose to answer the question by providing an answer that pertains specifically to the job. Examine the intent of the question and respond to that instead of the bumbled question itself. Example: The employer asks if you are a U.S. citizen (illegal question) but you respond: “I am authorized to work in the United States.”

These responses require some quick thinking and assessment as to how badly you need the job versus how well are you doing in the interview up until this point. There is risk involved, all the way around.

Ultimately, however, the convention rule of thumb is that interviews go both ways.

You are interviewing the employer as much as they are interviewing you. If they exhibit inappropriate or illegal behavior in the interview, you need to realize that this could be just the tip of the iceberg and could be an indicator of what the daily work environment is like.

Most employers care about creating a healthy workplace, and would avoid asking such questions during the interview, especially since there is a great deal of legal risk involved in asking illegal questions during that process.

Understanding your rights can help you be assertive in an interview, and protect yourself from bad employment decisions down the road.