May 23, 2022

Volume XII, Number 143

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May 20, 2022

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Avoiding Lawsuits: Legal Versus Illegal Interview Questions

Employers are generally aware that they cannot discriminate against their current employees based on race, skin color, religion, gender, pregnancy, national origin, disability, age or union membership (collectively, the "protected classes").  Some employers fail to realize, however, that discrimination suits are just as likely to arise from situations that occur prior to hiring an individual.  Specifically, employers face exposure to discrimination suits based on poorly conducted interviews by their human resources staff or company managers.  

employment interview questions

The most cited statute for discrimination cases is the Federal Civil Rights Act of 1964, which is applicable to any employer with fifteen or more employees. Title VII states in relevant part: "It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."  Title VII outlaws both (i)disparate treatment discrimination, which is intentional discrimination related to the protected classes, and (ii)disparate impact discrimination, which involves neutral practices that often unintentionally result in unequal treatment of protected classes.  There are two defenses that an employer can claim when a Title VII suit is brought against it.  An employer can attempt to claim that there is either (i) a bona fide occupational qualification, or (ii) a business necessity qualification.  A bona fide occupational qualification defense relieves the employer from liability for disparate treatment discrimination where selection of an employee based on gender, religion, age or national origin is reasonably necessary for the normal operation of the employer's business.  However, courts construe this defense very narrowly.  A business necessity defense relieves the employer from liability related to a disparate impact discrimination claim where a neutral criterion has a disparate impact on a protected class, but constitutes a business necessity.  "Business necessity" means that the criterion has an obvious relationship to job performance.  Courts also construe this defense very narrowly.   

Looking at the bottom line, a company that loses a Title VII action will face steep penalties.  The Civil Rights Act of 1991 (the "1991 Act") greatly expanded the remedies that were previously available to plaintiffs.  The 1991 Act authorizes courts to award both compensatory and punitive damages for intentional discrimination to certain of the protected classes, including race, skin color, gender, religion or national origin.[1]  Furthermore, the 1991 Act makes clear that cases involving intentional discrimination based on race or skin color can result in uncapped damage awards; in suits involving gender, religion or national origin, the 1991 Act caps the amount of damages based on the amount of employees an employer has.[2] 

Employers must therefore be aware of what questions their human resources staff or company managers are asking potential employees during the interview process.  Employers must make sure that applicants do not encounter questions that could give rise to either disparate treatment or disparate impact lawsuits.  As a general guideline, all questions asked during the interview process should relate only to the job the applicant is seeking.  In addition, not only should employers make sure their interviewers are prepared to ask "legal" questions, they should also make sure their employment application form(s) do not contain any illegal questions that could be used against the company in a discrimination suit. 

The following is a list of illegal and generally permissible interview questions:

Illegal Questions:

Race

  • What is your race?

National Origin/Citizenship

  • What country are you from?
  • Where is your family from?
  • Where were you born?
  • What heritage is your name from?
  • Are you a US citizen?

Age

  • How old are you?
  • When did you graduate high school?

Marital Status/Children

  • Are you married?
  • Are you engaged/divorced?
  • Do you live alone?
  • Do you have children?
  • Do you plan on having children?
  • Are you pregnant?

Religion

  • What is your religion?
  • Do you celebrate religious holidays?

Medical Conditions

  • Do you have any disabilities?
  • Have you ever been hospitalized?
  • Are you taking any medications?
  • Have you ever been treated for alcohol/drug abuse?

Arrest Record

  • Have you ever been arrested?

Generally Permissible Questions:

Race

  • As a general guideline, never ask questions about race.

National Origin/Citizenship

  • Are you authorized to work in the US?

Age

  • Are you over the age of 18?
  • Can you meet the minimum age requirements of the job as set by law?

Marital Status/Children

  • Would you be willing to work overtime?
  • Would you be willing to travel as needed?
  • Would you be willing to relocate?

Religion

  • We often work holidays and weekends - is there anything that will prevent you from doing so?

Medical Conditions

  • Can you lift "x" amount of weight (if related to the job requirements)?
  • Can you perform the essential functions of the job?

Arrest Record

  • Have you been convicted of theft, embezzlement, or other similar crimes (if related to the job requirements)?

[1] Prior to the 1991 Act, compensatory and punitive damages were only available for discrimination suits related to intentional job discrimination based on race or skin color. 

[2] As of May 26, 2015, the maximum damage award for employers is as follows: (i) 15-100 employees: $50,000; (ii) 101-200 employees: $100,000; (iii) 201-500 employees: $200,000; and (iv) 501+ employees: $300,000.  However, these caps do not apply to back pay.

© Horwood Marcus & Berk Chartered 2022. All Rights Reserved.National Law Review, Volume V, Number 212
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About this Author

Aaron D. Werner, Horwood Marcus Berk Law Firm,  Acquisition Attorney, Chicago, IL
Partner

AARON WERNER provides strategic, business-oriented advice to high-growth companies and investors as they navigate legal and business challenges.  Aaron's strong base of market knowledge on deal terms and strategies for navigating difficult situations comes from a decade representing clients in their most critical moments, including mergers, acquisitions, joint ventures and venture capital financing transactions. 

Aaron typically serves as outside general counsel to emerging companies in the technology, healthcare, media and entertainment, and...

312-606-3211
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