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Discrimination in a Job Interview

Both the Equal Employment Opportunity Commission (EEOC) and the courts have found that, in certain instances, the information obtained through pre-employment interviews and employment application forms has been used to deny employment opportunities to members of a protected class. A protected class is a group of people who share common characteristics and are protected from discrimination and harassment.

The following characteristics are considered "protected classes" and persons cannot be discriminated against based on these characteristics:

  • Race
  • Ethnicity
  • Religion
  • Color
  • National origin
  • Age (40 and over)
  • Sex
  • Familial status
  • Sexual orientation (in some states)
  • Disability status
  • Veteran status
  • Political affiliation
  • Genetic Information

Interview Questions that Are Illegal

Employers should not ask about your age, gender, race, religion, marital status, disabilities, ethnic background, country of origin or sexual preferences during a job interview or on a job application because to not hire a candidate because of any one of them is discriminatory. Personal questions considered to be job-related usually are permissible in the interview or on the job application.

Generally, it is not the asking of a question that is a violation of federal or state anti-discrimination laws; it is the practice of disqualifying applicants based on their answers to those questions that can be an unlawful employment practice. For example, asking a female applicant to disclose her maiden name is equivalent to asking her to reveal her marital status. While it may not be unlawful to ask about marital status, it will ordinarily be improper to base employment decisions on the applicant's answer to such questions. There are a few inquiries that may constitute a violation of the anti-discrimination laws just by asking the question, such as questions about an applicant's arrest record.

What Employers Should Do

Employers should eliminate all pre-employment inquiries in application forms or at interviews that require protected class information. Employers need to be careful when asking questions during an interview, avoiding questions that identify a person as having protected class characteristics and that do not relate to job performance. Protected class information needed for compensation and benefit administration, such as age, marital status or number of dependents, should be obtained after a person has been hired for a job and it should be recorded on a separate form, not on the employment application.

Filing a Discrimination Claim

If you believe you have been discriminated against by an employer, labor union or employment agency when applying for a job or while on the job because of your race, color, sex, religion, national origin, age or disability, or believe that you have been discriminated against because of opposing a prohibited practice or participating in an equal employment opportunity matter, you may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).

Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC. In addition, an individual, organization or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity.

All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court. To protect legal rights, it is always best to contact EEOC promptly when discrimination is suspected. Generally, a charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights.

Questions for Your Attorney

  • I recently filled out a job application that asked me if I had ever been arrested or convicted. Is that legal?
  • I was asked whether or not I am authorized to work in the United States during a job interview. Is a prospective employer allowed to ask that question?

Related Resources on Lawyers.comsm
- Job Interviewing

Related Web Links
- The U.S. Equal Employment Opportunity Commission - Federal Laws Prohibiting Job Discrimination Questions and Answers
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