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Topics That Raise An Inference of Discrimination During Job Interviews

Yarelyn Mena

Employment discrimination can occur at the application stage; an individual does not need to be a current or former employee to bring a discrimination claim. It is important for everyone in the labor force to know that prospective employees are also protected by antidiscrimination laws.

Prospective employees generally do not attend a job interview on the alert for an interviewer’s discriminatory questions but, according to a survey conducted by the job search website CareerBuilder, twenty percent of hiring managers ask “off-limits” questions during interviews. The following is a list of ten categories that candidates should be weary of if interviewers breach these topics. It is important to note that although many of these questions are not explicitly illegal to ask, they give rise to an inference of discrimination.

Race. Under Title VII of the Civil Rights Act of 1964, it is illegal for an employer to ask questions about race or skin color during an interview. However, employers may leave a space on job applications where prospective employees can voluntarily disclose their race.

National Origin. Employers may not ask about a prospective employee’s citizenship, birthplace, or even make comments about one’s accent. However, it is important to note that acceptable questions include eligibility to work in the United States. An employer can also inquire as to how the candidate learned a language if fluency in another language is required for a position.

Maiden names. Under New York State law, employers should not discriminate based on marital status. Employers also must not disccriminate based on gender, so it is inappropriate to be asked about family planning.  However, an employer can ask candidates their full names and ask if they have gone by any other name for purposes of a background check.

Age. An employer should not ask about date of birth, date of high school graduation, or any other questions where the response can determine one’s age. However, employers may ask if candidates are the minimum age required for the position.

Disability. The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified candidates because of their disability and must make reasonable accomodations for disabled employees. Employers cannot ask prospective employees about the existence or severity of a disability, or medications taken. However, employers are allowed to ask if candidates can perform the essential functions of a position and ask about any accommodations.

Religion. Employers should not ask about one’s religion or religious practices. However, employers can ask candidates if weekend and/or holiday work will pose a conflict and religious organizations can express religious preference when hiring.

Criminal Record. Employers are not allowed to ask about arrest records, although they are allowed to conduct background checks where this information can be found. Employers often ask about criminal records on employment applications along with a disclaimer that a conviction will not disqualify any candidate from employment. The U.S. Equal Employment Opportunity Commission (EEOC) states that employers must consider a number of elements when weighing a candidate’s conviction including the severity of the charge, the time that has elapsed since the conviction, and if the offense has any connection to the position or the duties of the position.

If you have felt discriminated against at a job interview, please contact The Harman Firm, LLP.

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