But there’s a big difference between a hiring manager asking a candidate: “If a coworker had an annoying habit, and it hindered your quality of work, how would you resolve it?” and asking whether the candidate is a runner or hiker. The latter can land the company in legal hot water.
According to Michelle Lee Flores, a labor and employment attorney with the law firm Cozen O’Connor, “Some questions (that can be legally problematic) are not obvious and may be asked by the interviewer in an innocent effort to ‘get to know’ the candidate, like if they run or practice yoga.” Flores explains that could be dangerous as it may identify an applicant’s general health, medical condition, or mental and physical disabilities.
The number of discrimination cases logged by the Equal Employment Opportunity Commission (EEOC). Last year, 91,503 charges were filed with the EEOC, as compared to 80,680 in 1997.
One of the most common charges is age discrimination. Nearly a quarter (22%) of U.S. workers are over 55 years old. Yet almost two-thirds of those older workers reported that their age was a barrier to getting a job, according to a 2017 AARP survey. Another comprehensive study by researchers at Tulane University and the National Bureau of Economic Research Disability Research Center (NBER) using resumes for workers at various ages found significant discrimination in hiring for female applicants and the oldest applicants. A tech worker over 60 years of age recently sued Google for discrimination, setting off a class action suit to represent workers over 40 who didn’t get hired by the search giant.
Settling these lawsuits is costly for the employer. A smaller study by insurance firm Hiscox of 446 closed claims reported by small- to-medium-sized businesses with fewer than 500 employees showed an average cost of $125,000 and 275 days to resolve.
Flores points out that avoiding some common pitfalls when hiring employees begins with not asking questions that reveal protected status or characteristics which include disability, marital status, religion, age, mental or physical disability, veteran status, or pregnancy status, unless it is legally relevant to a position. At that point it becomes a “bona fide occupational qualification” says Flores. For example, if a job requirement is lifting heavy objects or driving a vehicle, certain health conditions could prevent a worker from performing those tasks.
Here are some seemingly innocuous questions that actually tread in murky legal territory.
Don’t Ask When Someone Attended School
“Asking questions that tend to reveal protected information status are also off limits,” adds Flores, like asking someone when they graduated high school can reveal their age. This can then feed into the persistent bias among many hiring managers that older workers are overqualified and will cost too much both for salary and benefits.
Don’t Ask About Previous Pay
Speaking of salary, Massachusetts and New York recently passed legislation prohibiting employers from asking about salary and it soon may be illegal in all 50 states.
Don’t Ask About Pregnancy, Even When It’s Obvious
It’s even trickier when it comes to pregnancy. When you consider that women make up over 57% of the workforce, and Pew Research indicates that 40% of working mothers are breadwinners, it’s not hard to imagine a hiring manager asking a woman who is visibly pregnant when she is due.
“Asking the question is not per se illegal,” notes Flores. However, she says it is illegal to consider pregnancy (which is a protected status) when making employment decisions, including hiring. “Asking the question could be used as evidence that the prospective employer considered the pregnancy in its hiring decision,” Flores says.
If the candidate is visibly and obviously pregnant, she can offer to discuss it, says Flores, but in no way is she required to mention anything. “Frankly, when a male candidate interviews, I have not heard of a regular inquiry if his spouse is pregnant or if he intends on having a child at some point in the next year,” Flores points out, “but certainly he may be entitled to time off to care for a pregnant wife or in light of a newborn or adopted child.”
In Fact, Don’t Ask About Their Families At All
It may seem like small talk, but discriminating based on marital status is illegal. So avoid asking about a candidate’s spouse or commenting on an engagement ring unless they bring it up first.
Don’t Ask Where They Learned To Speak Another Language
If a job candidate is proficient in another language and indicates it on their resume, it’s still risky to ask where they learned to speak it. According to an HR guide from the State University of New York at Albany, this question could lead to an applicant revealing they learned the language at home and therefore about their ethnic background that could later on be used as grounds for a discrimination complaint.
Don’t Ask Where They Go To Church
Many interviewers ask questions to see if a candidate will be a cultural fit for the company. That could include where they attend church, but doing so could be interpreted as religious bias. “Unless the employer is a church or other religious institution (where arguably it may be relevant), a job seeker could politely decline,” Flores says. She suggests deflecting the question by saying something like “I always think it is best to keep religion and politics out if the workplace,” and then ask the interviewer a job-related question.
Be Careful When Asking About Hobbies And Corporate Sports Teams
This also applies to hobbies and physical pursuits, especially at companies that encourage staff to exercise together and provide on-site facilities. Flores says answering such a question depends on the job seeker’s comfort level. “If they do not want to answer, I would answer with hobbies that do not reveal the disability,” she suggests. If the question is about being interested to play on the company’s softball team, she says one possible way to deflect would be, “I’ve never been much into playing softball, but I will be your #1 fan in the stands.”
Why This Matters and How To Avoid Unintentional Bias
Overall, Flores recommends that employers ensure they actually have a “bona fide occupational qualification” that would exclude some applicants by speaking to a seasoned employment lawyer to determine if it will qualify under federal and their respective state laws. Then, she says, they must convey that to every candidate and emphasize that they are an equal opportunity employer and will hire those that are capable of performing the essential duties of the job with reasonable accommodation.
But she also cautions hiring managers to consider how their own unconscious biases could be creeping into the decision-making process. This could come from uninformed interviewers, which is why she recommends that companies train all hiring managers on what kind of topics and questions should be avoided (anything related to marital status, age, or religion). Beware of subconsciously considering protected characteristics in weighing a candidate’s worthiness for a position or whether to recommend a call-back interview, she says.
No matter how good your intentions, Flores says that “all employers should be mindful of unlawful bias creeping into considerations and determinations of the “best” candidate.”