Sitting Across From a Questionable Query

By Vickie Elmer
Special to The Washington Post
Sunday, April 6, 2008

Inappropriate or potentially illegal questions pop up in job interviews fairly frequently, experts say. These questions complicate matters for the applicant and the interviewer.

"There are only a couple that are flat-out illegal. The rest fall into categories that may not be technically illegal but raise the suspicion that employer is using [discriminatory] tactics in hiring," said Joseph V. Kaplan, managing partner at Passman & Kaplan, a D.C. law firm that represents workers and unions.

But how to deal with such questions? Here's some guidance:

Clearly Illegal

· Medical and disability queries. The Americans With Disabilities Act prohibits many questions, including those that reveal whether a person has a disability.

"There are many other kinds of medical questions prohibited under this standard," said Sharon Rennert, a lawyer at the federal Equal Employment Opportunity Commission. Illegal questions include hospitalization, prescription drugs taken or history with a psychiatrist.

Sometimes employers are surprised to see a candidate's disability, so they will ask illegal questions while their guard is down, Rennert said.

Employers can ask whether candidates can do the job or whether they need any "accommodation." They can ask whether candidates can lift 50 pounds or read tiny print if that is needed to do the job, Kaplan said.

· Marital status, family situation. The District, Maryland and Montgomery County outlaw employment discrimination based on whether you're married. In the District and Maryland, the laws add family responsibilities, which include child care and child custody arrangements, said Diane Seltzer, an employment lawyer at the Seltzer Law Firm.

"They think: I'm just getting to know you," she said. But friendly chat can lead to discrimination against women. "Men don't get asked these questions," she said.

Dubious Topics

These interview topics are not illegal, but they raise suspicions about the employer's intent. They could indicate discrimination if the job seeker is well qualified but isn't hired:

· Sexual orientation. Some jurisdictions, including the District, have anti-discrimination laws that cover this.

· Age. Employers can ask for age or birthdate, but they need "a lawful purpose." Otherwise, employers should avoid asking questions that may figure out a candidate's age -- such as when they graduated from high school or college, Seltzer said.

People who are 40 and older are protected under the Age Discrimination in Employment Act. In the District, all workers are protected from age discrimination, so if you look young, you cannot be deemed too young for a management job in the city, Seltzer said.

· Religion. Questions about religious practices or beliefs present "evidence of discrimination" except in rare circumstances, Kaplan said.

· Arrests and convictions. Employers can find out about criminal convictions, especially if the information bears on candidates' ability to do the job, Kaplan said. But questions about arrests are "much more suspect" because arrests fall disproportionately on minorities.

· Race or ethnic background. Employers are allowed to ask about race or national origin, but doing so may raise red flags -- or make candidates uncomfortable.

· Pregnancy plans. Employers may want to know whether a candidate will have a baby and leave, or whether she might miss work for pregnancy-related complications, Seltzer said. But this practice can be unlawful if it rules out qualified women. "It's inadvisable to ask those questions, not illegal," said Dianna Johnston, another EEOC lawyer.

How to Answer

Kaplan thinks candidates should answer most questions -- even if they seem illegal -- and "put their best qualifications forward." Then they have done nothing to hurt their chances of getting the job -- or of bringing a discrimination charge if they are passed over.

Seltzer sees it differently.

"Generally the best way is to deflect the question and anticipate [what] the real question or concern of the employer is or should be," she said. If asked about plans for another baby, the job-seeker could say, "Oh, I think I get what you're getting at. You want to know if I'm committed to being in the workforce and I intend to be here a long time. And the answer is yes."

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