I have been with the same company for over 20 years but have recently taken a nice buy-out package. As I am job hunting, I am wondering what is permitted and what is not permitted when it comes to questions asked in interviews, etc.? I am particularly concerned about age discrimination.
There are many myths and much misinformation about what a company is permitted to ask about in the hiring process. I am not claiming to be a guru in this area, but I have received a good bit of training as a hiring manager and a recruiter. The specific areas I will address are among the more common causes for concern. For some of the more obscure issues, I would suggest consulting an employment lawyer or a member of SHRM (the Society for Human Resource Management). If I have missed the mark in any of the responses below, I will make a correction if someone will let me know.
Permissible:
Age Question: It is permissible to ask for age on an application or in an interview. However, there should be no reason to do so, and the risk of potential age discrimination charges resulting from such a question make it very unwise to do so.
Reference Checks: Reference checks are permissible, and questions are only limited by what is illegal under state or federal law - i.e., questions regarding race, gender, etc. That said, the information provided by many employers has decreased significantly over the last 20 years or so. Most large companies will refer you to an HR manager who will typically only verify whether a person was employed and the dates of employment. There is an outside chance you can get a title out of the reference check. Although companies may have a stated policy about managers not providing reference checks and referring inquiries to HR, this is routinely not subscribed to. Also reference checks are covered under the Fair Credit Reporting Act. As with credit applications, you are entitled to see the results of the checks (not including the name(s) of the person(s) who providing them) and to dispute them.
Bona Fide Occupational Qualification Exemption (BFOQ): This is a rarely used one and can be applied only in cases involving gender, religion, or national origin. It is also very narrowly interpreted. A couple of examples are a religious organization requiring that employees hold particular religious beliefs and a male locker room requiring a male attendant. (No comments, please; I have already heard them all.)
Testing: This is generally permissible if it can be shown to be applicable to the job and the ''validity'' of the test(s) in question has been independently verified. Any testing also cannot be discriminatory (whether intentionally or not) towards a class of people. Finally, any test needs to be applied across the board, to all candidates.
Not Permissible:
Criminal charges or convictions: I start with this one because it is actually a murky area. Generally the federal government has found questions regarding such matters to be permissible, though some states regulate, or even ban, this type of question unless it has direct application to the job. The bottom line is that if you don't have any arrest record, answer the question – doing so won't hurt you.
Disabilities: It is against the law to ask about disabilities during an interview. An employer may ask if a potential employee can do the job with or without accommodations, or ask if accommodations are needed to complete the interview or demonstration process. An employer may also ask about ''reasonable'' accommodations to perform the job if (1) the disability is obvious and would potentially require accommodation, (2) the candidate voluntarily discloses that he or she has a disability, or (3) he or she voluntarily discloses a need for accommodation. There is also a requirement that any employer with 15 or more employees provide ''reasonable'' accommodation. This whole law is open to some interpretation, and much of the time said interpretation is based on the financial requirements of the employer. It is one thing to require someone to buy a different desk and quite another to require them to put in an elevator.
Age, gender, ethnicity, and religion: No further explanation is needed.
Hiring based on government quotas: Many times recruiters will hear a statement similar to this: ''I need more ethnic minorities, more women, etc. in my organization.'' While this may be said with the best of intentions, it is illegal to recruit, interview, and hire based on these qualifications.
Workman's compensation history: This is not a question you would typically see at the level of my readership, but I have seen it on applications for blue-collar workers. I relate this one to all of you as you might be in a situation where a company is hiring blue-collar employees and you see this on an application. It is a big no-no.
Transportation: This is not a question that typically comes up at this level, but it can. They may ask you if you can get to work. But that is the limit. I have only seen this brought up twice in all my years of recruiting. One time was regarding a sales position with a major firm. The candidate they wanted to hire had verifiable documentation that he had blown out all his sales quotas in the past. He had a sales territory in the past that was 200 miles plus in radius. Upon a background check, however, they found that his driver's license had been suspended for DUI. I told them it was not permissible to discriminate based on a suspended driver's license. Besides, the person had adopted to exceed his quotas. Why wouldn't you want to hire him?
Pregnancy: A company cannot discriminate based on pregnancy. This is covered under an amendment to the Civil Rights Act added in 1978.
Polygraphs: It is against the law to administer pre-employment polygraphs, except for certain positions involving certain types of security and financial transactions.
Child care: Again, this question is one not seen too often at the level of this readership, but it can come up. Ninety-nine percent of the time it is asked of women, which is discriminatory in and of itself. But an employer may not ask about this - period.
I am not trying to start a crusade with this information, only to inform. You may just need to get a job, not become the next Ralph Nader. But knowledge of these areas could benefit you.
My opinion is that most companies ask these questions based on ignorance and poor procedures, not discrimination. So don't go in with your sword prepared to battle. If asked one of these questions innocently, it won't do you any harm to respond and then nicely ask if they were aware that such a question is illegal. Also state that you are only asking in order to help them avoid getting in trouble in the future.
Here's Wishing You Terrific Hunting,
Bill
About the Author
Bill Gaffney has had 17 years of experience as an executive recruiter and a career coach. He can be reached at 937-567-5267 or wmgaffney@prodigy.net.
