Know your rights and legal options in the hiring process
For many West Virginians, the new year also means a new job or at least a look at the job market to see what's out there. If you're considering applying for a new position, then you need to know your rights in the hiring process, which includes protection from unlawful discrimination. For example, there are specific topics employers shouldn't ask about in an interview because it would be unlawful for them to consider the answers when deciding whether to hire you — and in some circumstances, even asking the question might be enough to constitute illegal discrimination.
Here are four of the most common types of potentially illegal interview questions. Remember that this isn't an exhaustive list, and whether a particular question is legal or illegal can depend on the context. Only an experienced employment lawyer can explain how the law applies to your individual situation.
Besides the obvious "how old are you?", some examples of potentially illegal age-related questions include:
- "How long have you been in the workforce?"
- "How close are you to retirement?"
Remember, it's illegal for employers to discriminate against workers over the age of 40, and some seemingly reasonable interview questions are a "backdoor" way of asking about your age. Note that it's legal to ask whether you are over 18 or 21 (many jobs have legitimate reasons for requiring this), and it's also legal to ask how many years of experience you have in a particular industry.
National Origin and Immigration Status
Some examples of illegal questions about national origin include:
- "Were you born in the United States?"
- "What kind of accent is that?"
- "Is English your first language?"
- "Are you a U.S. citizen?"
It's okay for an employer to ask if you are legally authorized to work in the United States. It's also legal to ask if you are fluent in English if that is a requirement for the job. But the focus of these questions must be your ability to do the job, not your race, ethnicity, national origin, or immigration status.
Disabilities and Medical History
Some examples of unlawful questions about disabilities and medical conditions include:
- "Do you take any prescription medications?"
- "Have you ever been in rehab?"
- "Do you have any medical conditions that might affect your work?"
Any questions related to potential medical conditions need to be narrowly focused on whether you can do the job with or without reasonable accommodations. So, for instance, "Do you have any medical conditions that would prevent you from doing this job?" is a legal question, but "Do you have any medical conditions that could affect your job?" is too broad. It's best to discuss the details of specific accommodations later in the process once you have a job offer in hand.
Unless you're applying for a job where practicing a specific religion is a bona fide occupational qualification, most employers cannot consider your religion in hiring. Some examples of legally problematic questions about your religion include:
- "What's your religious background? Do you practice?"
- "Where do you go to church?"
It's legal for an employer to ask about your availability (if that's important for the job) but not about your religious beliefs or practices. An employer whose "purpose and character is primarily religious" is allowed to consider religion in hiring, but a secular business that merely happens to have religious owners is not.
What to do if you're asked an illegal question in an interview
Once you know your rights, what to do about them is up to your discretion. If you get the sense that the question is ultimately harmless — the interviewer is just trying to get to know you — and you're comfortable answering it, then that's a valid choice. You can give information about your religion, national origin, or another protected characteristic without violating the law; it's the employer's job not to discriminate.
Another option is to deflect the question by keeping the focus on what's actually relevant to the interview. For example, saying, "I am able to do the job" or "Nothing in my personal life will interfere with my ability to do the job" is a perfectly reasonable response, and it may clue the interviewer in that they're pursuing an inappropriate line of questioning and should change the subject.
A more direct approach is to push back: "Why did you ask that?" Again, this may help the interviewer understand that the question is inappropriate. In addition, they may rephrase the question to be more narrowly focused on the job instead of your protected characteristic. If they insist on an answer, though, then that's valuable information for you to have as well.
If you've been discriminated against in the hiring process, we can help.
If you believe you have been discriminated against in hiring on the basis of your age, religion, national origin, disability, gender, or another protected reason, you may have legal recourse, including filing a complaint with the applicable state or federal agency as well as filing a civil lawsuit. However, proving you were discriminated against can be tricky, and the employer is likely to cite other reasons you were not hired or not considered for the position. Nevertheless, we know what evidence to look for and how to build a winning case.
We'd be honored to listen to your story and explain your rights and options. Contact us today for a free case evaluation with Klie Law Offices.