Job Interviews: What is Legally Off-Limits?

May 12, 2016

Both employers and potential employees should be aware of the discrimination that can occur as early as the interview and the hiring stage of employment. While employers want to hire candidates who can perform the job and enhance their organization, potential employees want to make a good impression. Though interviews are crucial to the onboarding process—they leave opportunity for discrimination. Many employers may not realize this—and may violate anti-discrimination laws if they screen out a particular, protected class of potential employee.

For example, an employer may need to hire an employee to work on a time-consuming project that will take up much of the next two years. They may want an employee who is going to work long hours. Let’s say a highly qualified woman applies and is given an interview. The employer notices a wedding ring on her finger. Concerned that the applicant’s family life might cause her to take extensive time off from work, at the interview the employer asks the candidate: “I noticed you are married. So, do you have kids or are you planning on having any soon, because the company really cannot afford to have someone out on maternity leave during this project?” The employer might be so focused on their business needs that they don’t think about how what shapes their definition of an “ideal candidate” may exclude applicants for discriminatory reasons.

Employers should not use language in job descriptions, applications, or interview questions that could indicate a preference for or against a particular protected class. Employers should not ask applicants questions like these: “You look very exotic. What ethnicity are you?” “Here let me help you with that cane. Are you injured, or crippled?” “We have a Weight Watcher’s group starting soon that you are free to join, or are you just pregnant?” While these questions may seem ridiculous, discriminatory bias is often unconscious and the employer may not be aware they are revealing their prejudices by their questions. Employers should craft screening questions that are bias-free and limited to information that is needed to evaluate an applicant’s qualifications.

In a real-world example, Abercrombie & Fitch’s “Abercrombie look policy” came under scrutiny after an applicant won a lawsuit against A&F. The applicant wore a hijab to her job interview. The interviewer asked her if she was Muslim. After hearing her answer, the interviewer did not recommend her for the job and noted that the applicant was “not the Abercrombie look.” A hijab is worn for religious reasons and it is impermissible (absent a bona fide occupational reason or a health and safety concern) to fail to hire an applicant because they wear a hijab.

If you have any additional questions about discrimination during the job interview or onboarding process—please reach out to PCW Law Firm.

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