Illegal Interview Questions

felicia_matthews · November 2001

The HR Associate in our department is attending a HR Management course at a local California university, and a classmate who claims to be an attorney, insists that it is not illegal to ask an applicant if he/she has children. Of course, my co-worker strongly disagrees, and is seeking case law examples to reference to settle this glaring misconception. And to clarify, it is during a pre-offer interview that the "attorney-classmate" insists that this type of questioning is 100% ok...

I just need some case law reference to pass on...

Thanks.

Hatchetman · November 2001

[font size="1" color="#FF0000"]LAST EDITED ON 11-27-01 AT 05:59PM (CST)[/font][p]Well, it may not be illegal under federal law, per se, because family status is not a "protected" category. HOWEVER indirectly, it can be argued that there would be a tendency to make decisions that discriminated against women if questions about children are asked during the pre-offer stage. Some federal circuit courts have held such questions do violate Civil Rights laws.

Try "Bruno v. Crown Point City" 7th Circuit in 1991. The legal citation is 950F2d355.

On the other hand, it is possible that state law may prohibit it.

TheCol · November 2001

The existence or absence of children is not normally a business matter. It is entirely correct to say "the work hours are from 8 am to 5 pm with an hour for lunch, do you have any obligations that would prevent you from keeping that schedule?" The "disparate impact" swamp is around that corner. (See Bruno v City of Crown Point, 950 F.2d 355 (7th Circuit, 1991, but see also Costa v. Desert Palace Inc, 238 F.3d 1056 (9th Circuit 2000) comments motivated by considerations of parental marital status do not establish gender bias, and either status is protected under Title 7.) Also, preganancy is a protected category and wandering around in that questioning mode is not too swift.

Gillian · November 2001

[font size="1" color="#FF0000"]LAST EDITED ON 11-28-01 AT 11:45AM (CST)[/font][p]My take is that the "attorney" is just being an attorney and is being overly technical. Most of the things that we think are illegal to ask are not illegal per se. The illegality comes in when we make employment decisions based upon the responses that we get. It's stupid to ask the questions, of course, because any decision that is made looks like it is based on the responses to the questions.

I am in California as well, and if you will e-mail your FAX number I will send you the DFEH Pre- Employment Inquiry Guidelines which indicates that it is a darn good idea NOT to ask questions about the number and ages of children. My e-mail address is [email]shugh@westernu.edu[/email]

Illegal Interview Questions

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