Questions Employers Must Avoid Asking During the Hiring Process

All employees in the United States have rights in the workplace which cannot be violated by their employer. These rights, like the right to not be discriminated against, extend to prospective employees during the interview process.

To stay clear of violating an individual’s rights and potentially facing a lawsuit, employers must refrain from asking certain questions during the hiring process. Illegal job interview questions include anything that can be construed of having discriminatory intent against protected classes.

Protected Classes

There are a number of classes that are considered protected under Federal Law. In some cases, protected classes overlap. Businesses are typically subject to both state and federal laws regarding discrimination. The law details that employers cannot discriminate during their hiring process based on an individual’s:

  • Race
  • Color
  • Religion or creed
  • National origin or ancestry
  • Sex
  • Age
  • Physical or mental disability
  • Veteran status
  • Citizenship

Some state laws will apply more than federal laws. For example, most federal discrimination laws apply only to companies with 15 or more employees, while a state law may apply if a business has even one employee.

Questions with Discriminatory Intent Are Illegal

There are certain topics that employers must stay away from during the hiring process. Employers must adhere to these rules and abide by the state and federal anti-discrimination laws at each stage of the hiring process, through the employment of the employee, and ended upon their termination. The hiring process itself includes the placing of a job advertisement and extends through interviews until the final selection of the candidate to be hired.

The following topics may lead to the presumption that the applicant could be discriminated against during the hiring process. These questions include asking about any of the following:

  • The applicant’s age
  • The applicant’s sex, gender identity, or sexual orientation
  • If the applicant suffers from any disabilities
  • The applicants marital statu
  • Whether the applicant has children, is pregnant, or intends on having children in the future
  • The applicant’s citizenship status
  • Whether the applicant is religious or their religious affiliation

It is not enough for an employer to merely avoid asking these questions directly. They must also be careful to avoid doing so indirectly. For instance, an employer may know to avoid directly ask a prospective employee their age, however, the question “when did you graduate high school?” would be an indirect way of asking the same thing. Similarly, asking an applicant if they have availability to work on weekends could be perceived as a proxy question for finding out if they observe religious traditions. In these examples, neither the direct or indirect questions are acceptable.

If any of these topics are brought up by the employer during a job interview, an applicant can raise an objection or decline to answer the question. Sometimes the applicant may offer up this information voluntarily, even without prompting by an employer. Should this occur, it is best for the employer to not follow up on the topic, nor should they let the additional information influence their hiring decision.

According to the U.S. Equal Employment Opportunity Commission (EEOC), exceptions can be made if the questions is about a “bona fide occupational qualification.” For example, the owner of a bar in Deerfield Beach can ask an applicant their age as Florida law requires bartenders to be at least 18 years old.

Contact an Employment Law Attorney If Your Rights Been Violated

If the applicant feels their rights have been violated by the employer during any stage of the interview process, they may have an Employment Law case and the opportunity to seek remedy.

The Ticktin Law Group works with both employers and employees in Employment and Labor Law Matters. Whether you are an employer that is unfairly facing litigation or an individual whose rights have been violated by an employer, it’s best to contact a knowledgeable Employment Law attorney. The Ticktin Law Group offers complimentary consultations to assess your case and determine your options and remedies. To schedule a consultation, call (561) 232-2222 or complete our convenient contact form here.

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