This week’s expert Q&A is with author and employment attorney Donna Ballman. Donna has practiced employee-side employment law in Florida for over 25 years. She comes to us today to share her expertise on a hot topic: how to handle inappropriate job application and interview questions.
First things first. Can you explain why it’s illegal to ask certain questions of job seekers?
There are no questions that are per se illegal. What I’d prefer to say is that certain questions are inappropriate. While you can’t sue just because you were asked a question, being asked an inappropriate question could be evidence of discrimination if you aren’t hired. Questions that are inappropriate are those that relate to legally-protected categories under the law. Questions that are about your age, sex, race, religion, national origin, disability or genetic information are almost always inappropriate because it is illegal to base a hiring decision on any of these categories. In some states, employers aren’t allowed to ask about arrests or convictions, and some prohibit inquiries about credit history. Even if the questions are allowed, excluding applicants based on arrests, convictions or credit history may have an adverse impact on minorities.
How common are illegal or inappropriate questions during job interviews and within job applications?
Most employers know not to ask blatant questions, but sometimes they can’t help themselves. I had a mixed race client who was actually asked, “What are you?” People on crutches are frequently asked, “What happened?” Questions like, “What year did you graduate?” or “Where are you from?” are not uncommon in regular conversation.
How can a job seeker spot an inappropriate interview question?
Some are obvious, like the, “What are you?” question. Women are sometimes asked about plans to have children, child care or how they will deal with a sick child. Older employees may be asked how long they intend to work. Basically, you should be conscious of any question that may reveal a protected status. Some employers will ask about worker’s compensation claims. Even though most states make it illegal to fire you for making a worker’s comp claim, few states prohibit hiring discrimination based on worker’s compensation claims. Even in those states that bar worker’s compensation discrimination, the claims are public record and the employer may find out about them. Worker’s comp information may well reveal the existence of a disability, so employers who use this information against applicants do so at their peril.
Say a job seeker finds an improper question in a job application. How do you advise that she responds?
I advise employees to answer truthfully, and to make sure they get a copy of the application with the improper question. Some employers (those with at least 100 employees or government contractors) are required to report race, gender and ethnic information of all employees to the government, and some do track this information for affirmative action purposes or other legitimate reasons. They may have to ask this information on a form separate from your application, such as on a “tear sheet.” However, if this is asked pre-employment, you should make note of it and keep a copy if possible.
Arrests and convictions are a bit tricky to deal with. If your conviction is expunged, check the state’s law where the expunction happened. In most states, if the conviction is expunged you can honestly answer “no” to questions about arrests and convictions — with certain exceptions, such as jobs in law enforcement.
As to credit history, the employer might ask questions, but if the employer intends to run a credit check on you, your application will ask for your written permission. If you don’t give permission and the credit check is run anyway, the employer is violating the Fair Credit Reporting Act and possibly your state’s law. It may be legal for an employer to refuse to hire you because you had a bankruptcy. The bankruptcy is public record and will be revealed in a background check.
It’s tempting to lie when you are asked a difficult question. Think carefully before you do. The consequence of lying about anything, such as job history and terminations, is that if the employer finds out that you lied, even years later, they can fire you. It also can be used as a defense to a lawsuit in order to cut off your damages. The employer will say that they could have fired you because you lied, so your right to lost wages/back pay is gone.
Now let’s say the job seeker is at a in-person interview. How should he respond to an illegal or improper interview question?
My best suggestion is to answer truthfully, but write down the question as soon as you leave the interview. If you’re turned down, it might give you ammunition for a discrimination claim later. If you want the job, don’t make a stink about the question. If you feel you must raise the issue, get hired, then point it out gently after you’ve become a trusted employee of at least six months to a year.
Career advisers will tell you to carefully frame your answers or even omit information. They’re not wrong, but I can’t advise you to do anything but tell the truth.
Let’s look at the employer side for a moment. What can a company do in order prevent illegal questions from being asked?
Training, training, training. Run scenarios with your interviewers. Practice. Teach them about some pitfalls and questions that may seem innocent but are not. Otherwise, you might see someone like me across the deposition table from you one day.
Is there anything else you would like to share on this topic?
One of the questions I’m asked frequently is about references and job history. Do you list the supervisor whom you reported for sexual harassment? Do you list the job from which you were fired for blowing the whistle on securities violations? The legal answer is yes. Omitting employment history will give an employer an excuse to fire you later, and it will probably come up in a background check. Many companies have reference-checking phone numbers through which HR will only give neutral references — dates of employment and job title. If the employer was a problem employer, list the neutral reference line. Or you may have a supervisor who will still say something positive. List them instead of the one you know will slam you. You might want to hire a professional reference-checking company to find out what prospective employers will say about you so that you can tailor your application and interview accordingly.
I’d also caution applicants to beware what you sign. Some sneaky employers are putting all kinds of contractual provisions into employment applications. They may ask you to waive trial by jury, or to waive your right to go to court and force you into arbitration, and the courts are allowing these provisions to stand in some states. Beware of the employer that puts these provisions in applications. Your employment with them will likely be a matter of the company constantly operating in defensive mode, treating employees as the enemy.
Employers can make a bad first impression, same as employees. If you get a bad feeling at your interview, do your due diligence and research the employer before you accept a job from them.
About Today’s Q&A Expert
Donna Ballman’s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently named the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. She has practiced employee-side employment law in Florida for over 25 years. Her blog on employee-side employment law issues is Screw You Guys, I’m Going Home, and she can be found on Twitter as @EmployeeAtty.