Sounds More Like an Interrogation

Have you ever had to go through the pain of a job interview?   Me?  I've done lots of them.

Among other things, what I got out of the interviewing experience was a long list of illegal questions potential employers ought not ask in an interview.

 Why?

Most illegal questions focus around one thing - they don't relate to how a job is to be performed.

Samples of illegal questions include:

• How old are you?  Why illegal: Age discrimination is prohibited under the Age Discrimination in Employment Act (ADEA) if the applicant is 40 or older. Age should not factor into hiring decisions.
• Are you married?  Why illegal: Marital status is not relevant to job performance and may lead to discrimination based on marital or family status.
• Is English your first language?  Why illegal: Related to national origin discrimination.
• Do you have any disabilities? Why illegal: The Americans with Disabilities Act (ADA) prohibits asking about disabilities before a job offer is made.
• Have you ever filed a Workers' Compensation claim?  Why illegal: This could lead to discrimination against individuals who have been injured and violates ADA protections.
• Have you ever been arrested?  Why illegal: While convictions may be relevant, arrests without convictions should not be used in hiring decisions, as it can lead to racial discrimination claims.
• Who do you live with?  Why illegal: Could reveal marital status, family structure, or sexual orientation, which may lead to discrimination.
• Do you drink or use drugs?  Why illegal: Employers cannot ask about past substance abuse; they may only ask if you can perform job duties safely.

Recently, I had an interview for the position of library director of a public library.  Yeah, I know - not legal.  But over time, you realize that all library's have the same issues.  

One question they asked (and it was couched in a way so try to make it less obtrusive saying "We ask everyone this question - like that makes it all better): 

If we were to look at your social media content, would we find anything objectionable?

First, what does "objectionable" mean?  What might be objectionable to one person might not be to another.  

To the point of whether it is a legal question, or not, the question itself is not explicitly illegal under federal law.  However, it is risky and can lead to illegal discrimination if used improperly.

So, how might this question about social media be be problematic?

While reviewing publicly available information is legal, asking about it during an interview could:

• Pressure candidates to disclose personal information (which it did and, by their reactions, is what they were hoping for),
• Create a chilling effect on lawful off-duty conduct (some states, like California and New York, protect lawful off-duty activities).

In addition, questions about social media usage could suggest implied off-duty conduct discrimination. In many states, it is illegal to discriminate against lawful off-duty conduct, such as political activity, social associations, or lifestyle choices that are not job-related.

Another reason questions about social media usage are problematic is because this type of question leads to potential for discrimination based on protected categories such as:

• Age (ADEA) 
• National origin (Title VII)
• Race or ethnicity (Title VII)
• Religion (Title VII)
• Sexual orientation or gender identity (Title VII, EEOC interpretations)
• Disability (ADA) 
• Pregnancy (Pregnancy Discrimination Act)

Finally, if an employer later rejects the candidate, the candidate could argue the rejection was based on information discovered through social media about protected characteristics.

A better question they could have asked me might have been: 

This role requires maintaining a professional image consistent with our code of conduct, including public-facing behavior and communication. Can you comply with this expectation?”

OR

We expect employees to adhere to our social media policy regarding confidentiality and professionalism. Are you comfortable with this policy?

Other questions which are not in-and-of-themselves illegal but suggest an illegal motive thereby making them illegal questions include:

• Can you work nights or weekends?  Not illegal in itself if the job requires it.  Becomes illegal if used to screen out candidates based on religious practices or caregiving responsibilities (religion, gender, family status).  Example: Denying a candidate who observes a religious Sabbath without exploring whether accommodation violates Title VII.
• Do you have reliable  transportation? Not illegal in itself.  Becomes illegal if used to screen out individuals based on disability (can’t drive due to medical reasons) or economic status. 
• What club or organizations to you belong to?  Not illegal in itself.  Becomes illegal if it seeks to uncover religious, political, or protected affiliations or if the information is used for discrimination. 
• Can you lift 50 pounds?  Not illegal if it is a bona fide job requirement.  Becomes illegal if asked without stating it is a job requirement and is used to screen out individuals with disabilities, violating the ADA. 
• What year did you graduate?  Not illegal in itself.  Becomes illegal if it is used to determine age, violating ADEA protections. 
• Have you ever been arrested?  Not illegal to discuss convictions related to job duties.  Becomes illegal because arrest records alone should not be used in employment decisions, leading to disparate impact on certain racial groups. 
• Are you planning on starting a family soon?  Not illegal to ask about availability.  Becomes illegal because it suggests gender/pregnancy discrimination under Title VII and the Pregnancy Discrimination Act. 

So, why are these questions illegal?  Essentially, the motive behind the question and how the information is used determines legality.  Questions that can elicit information about protected categories (age, disability, gender, religion, national origin, etc.) and influence hiring decisions violate:

• Title VII of the Civil Rights Act (race, color, religion, sex, national origin)
• ADA (disability)
• ADEA (age 40+)
• Pregnancy Discrimination Act
• Immigration Reform and Control Act (work authorization vs. citizenship)

Bottom line, if you aren't sure whether you should ask a question and are concerned that it might expose you to liability, your best bet would be to either run it past legal first or just not ask that question.

I'm just sayin.