CBS published an article on February 27, 2012 about illegal job interview questions. The article cites another web site for providing illegal questions reworked to make them allegedly safe. Both articles are intended for businesses to avoid liability. One of the paragraphs really stuck out to me. It stated:
"However, don’t assume an employer’s prying questions are suggestive of discriminatory intentions. Often, a hiring manager is just trying to assess your fit for the job, not trying to illegally discriminate. While you can’t be asked directly about any of these topics, don’t be surprised if you find yourself discussing your family or religion with a potential employer either. It all depends on how the question is phrased."
I do not think this is really good advice. And I think that prying questions might be doing exactly what they seem like they are doing. If you are seeking information about protected classifications that you intend to base your decision on — you are violating the law.
Title VII, 442 USC § 2000 et seq., and Michigan’s Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., make it illegal to fail to hire, refuse to hire, or discharge an employee because of a protected classification.
While over the course of time certain questions may have become per se illegal the law specifies that it is basis of the decisions on these protected classifications and not the wording of the question that is illegal. The questions as reworded by the web site seek to not ask directly for the protected information, but may get it indirectly. Having the information can be dangerous if you use it to make your decision.
Michigan’s Elliott-Larsen Civil RIghts Act protects religion, race, color, national origin, sex, height, weight, or marital status. MCL 37.21012202(1)(a).
Rather than rely on reworked questions and employer is best served to determine the requirements of the job and seek information relevant to the position. Additionally, the employer needs to know that regardless of their personal opinions or feelings they cannot make a job decision based on the protected classification.
If you are an employee or prospective employee and you think you have been asked illegal questions or that a job decision was made based on protected characteristic you should contact the EEOC, Michigan Department of Civil Rights, and an attorney.
NEW ARTICLE ON CBS
Another CBS article puts it a different way. Ms. Lucas, the articles author, argues that it isn't the question of the reason for the discharge, which I essentially agree with. However, she says it is nearly impossible to prove discrimination, and I disagree with this statement. It is difficult, but the problem is if these questions are asked they can be evidence that the illegal basis was used. The employer is able to provide a legitimate nondiscriminatory reason for discharge but the employer needs evidence that the nondiscriminatory reason was the reason. The author concludes with a statement about how managers should focus on finding the best employee and that is good advice.
On March 13, 2012 The following was added:
Eric B. Meyers writes an employment law blog at www.employerhandbook.com. While reading his most recent post, he included a link to an earlier post that listed 29 questions to never ask. I think his list is consistent with my opinion above. Check his list out here.
"However, don’t assume an employer’s prying questions are suggestive of discriminatory intentions. Often, a hiring manager is just trying to assess your fit for the job, not trying to illegally discriminate. While you can’t be asked directly about any of these topics, don’t be surprised if you find yourself discussing your family or religion with a potential employer either. It all depends on how the question is phrased."
I do not think this is really good advice. And I think that prying questions might be doing exactly what they seem like they are doing. If you are seeking information about protected classifications that you intend to base your decision on — you are violating the law.
Title VII, 442 USC § 2000 et seq., and Michigan’s Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., make it illegal to fail to hire, refuse to hire, or discharge an employee because of a protected classification.
While over the course of time certain questions may have become per se illegal the law specifies that it is basis of the decisions on these protected classifications and not the wording of the question that is illegal. The questions as reworded by the web site seek to not ask directly for the protected information, but may get it indirectly. Having the information can be dangerous if you use it to make your decision.
Michigan’s Elliott-Larsen Civil RIghts Act protects religion, race, color, national origin, sex, height, weight, or marital status. MCL 37.21012202(1)(a).
Rather than rely on reworked questions and employer is best served to determine the requirements of the job and seek information relevant to the position. Additionally, the employer needs to know that regardless of their personal opinions or feelings they cannot make a job decision based on the protected classification.
If you are an employee or prospective employee and you think you have been asked illegal questions or that a job decision was made based on protected characteristic you should contact the EEOC, Michigan Department of Civil Rights, and an attorney.
NEW ARTICLE ON CBS
Another CBS article puts it a different way. Ms. Lucas, the articles author, argues that it isn't the question of the reason for the discharge, which I essentially agree with. However, she says it is nearly impossible to prove discrimination, and I disagree with this statement. It is difficult, but the problem is if these questions are asked they can be evidence that the illegal basis was used. The employer is able to provide a legitimate nondiscriminatory reason for discharge but the employer needs evidence that the nondiscriminatory reason was the reason. The author concludes with a statement about how managers should focus on finding the best employee and that is good advice.
On March 13, 2012 The following was added:
Eric B. Meyers writes an employment law blog at www.employerhandbook.com. While reading his most recent post, he included a link to an earlier post that listed 29 questions to never ask. I think his list is consistent with my opinion above. Check his list out here.
Other Employment Law related Blogs I read
