$tart $mart Interview Questions

 

PRE-EMPLOYMENT INTERVIEWS AND QUESTIONS

 

Women in $tart$mart workshops often ask whether employers are allowed to ask questions about their family and personal lives and their plans to have families. There is no simple answer but there are federal and state laws that prohibit employers from asking gender-stereotyped questions of employees in the interview stage. This memo explains what can and cannot be asked and how you can deal with inappropriate questions. WAGE can provide you with an excellent legal memo if you choose to pursue this matter.


What are Employers Generally Prohibited from Asking?


Employers can not ask a female job applicant about pregnancy, marriage, childcare arrangements, earnings of her husband, etc. if the object is to try to penalize the female employee. Employers can not and should not make stereotypical comments about women and their work habits, make assumptions about the work habits of women with children, and penalize women if they don't fit into a particular box. If the female applicant has a visible disability, they may ask her about accommodations she would need.


What Is the Applicable Federal Law?


Employers may not ask questions about the personal lives of prospective employees if this would violate Title VII of the Civil Rights Act of 1964.

Generally, Title VII of the Civil Rights Act of 1964 requires that employers, agencies, and labor unions do not discriminate against any person because of race, color, religion, sex, or national origin. This includes gender stereotyping which is one of the most common types of discrimination in the pre-employment stage, as frequently evidenced through discriminatory interview questions.


What is Gender Stereotyping?


Gender stereotyping turns on whether the decision-maker has indiscriminately applied to an individual woman the true or false attributes ascribed to women as a group.

Common examples of gender-stereotyping questions are whether a woman's children or her husband will take precedence over her work, as the assumption is based on the notion that women are the primary caretakers.

The interview stage poses a particular risk that stereotyping will take place because the employer has only limited knowledge of the individual.

Not all sex stereotyping is based on family responsibility. Women who exhibit the masculine characteristics traditionally associated with success also often suffer the effects of sex stereotyping because employers tend to perceive women negatively when they do not conform to feminine stereotypes.


What Can a Job Applicant do or say if an Employer Asks a Gender Stereotyping Question?


Responses to this question vary, but one attorney advises that "a job applicant should answer all questions and should not directly question the interviewer's nature or assert discrimination. Instead, the job applicant should have a 'deflecting' answer for questions that seem overly intrusive or inappropriate. Answers to questions that seem not to be job related should bring the focus back around to job-relatedness which is the purpose of the interview.


What Does a Job Applicant Need to Show in Order to Prove an Employer Violated Title VII by Stereotyping Against Them Based on Their Gender?


A woman must show that her gender constituted a "motivating part" of the employment decision.

One of the simplest ways to think about the definition of what constitutes a "motivating factor" is the following: if someone asked the employer what its reasons were for making the decision it did, and if the employer responded truthfully, one of the reasons would be that the applicant was a woman.

An employer violates Title VII if the charging party's sex was a motivating factor in the challenged employment decision, regardless of whether the employer was also motivated by legitimate business reasons.

However, when an employer shows that it would have taken the same action even absent the discriminatory motive, the complaining employee will not be entitled to certain remedies, including reinstatement, back pay, or damages.


What Should a Job Applicant do if They Think That an Employer has Made an Employment Decision Based on Gender Stereotyping and What Happens Next?


One suggestion for a job applicant is to contact an attorney on their own. One of the best ways to find an attorney is through a local Bar Association.

However, discrimination cases brought under Title VII almost always require the involvement of state agencies and the Equal Employment Opportunity Commission (EEOC).

In New Jersey, it is not necessary to go through the EEOC. In NJ, the state agency is the New Jersey Civil Rights Commission and there is no requirement under NJ state law to go through the agency first. The New Jersey Law Against Discrimination is actually a stronger law than the federal law, so most claimants use the state law, and file in state court, without going through either agency.

It is therefore advisable for the job applicant to contact the state equal employment agency and the EEOC as soon as possible. Further, the EEOC requires that a claim be filed within 180 days of the discriminatory action. In some states, where the EEOC has a sharing relationship with the state agency, the deadline may be 300 days. However, to assure that a claim is timely, it is better to always observe the 180 limitation. The EEOC can be reached at 1-800-667-4000. Additional information, including office locations, can be obtained at: www.eeoc.gov.

The EEOC is required to attempt to resolve findings of discrimination through "informal methods of conference, conciliation, and persuasion." After the parties have been informed by letter that the evidence gathered during the investigation establishes that there is "reasonable cause" to believe that discrimination has occurred, the parties will be invited to participate in conciliation discussions. During conciliation, the investigator will work with the parties to develop an appropriate remedy for the discrimination.

The EEOC offers employers many opportunities to resolve charges of discrimination. Successfully resolving the case through one of these voluntary processes may save the job applicant time, effort and money. Besides formal conciliation the EEOC also offers a mediation program and various settlement negotiations.


Does it Matter Where the Job Applicant Lives?


In the Second Circuit (CT, NY, VT) and Eighth Circuit (ND, SD, NE, MN, IA, MO, AR), courts have found that an employer violates Title VII when they ask questions about childbearing plans, pregnancy, child care, and/or whether their husband approves of the job and its requirements. Courts in these circuits have found that those types of interview questions are discriminatory and directly affect the hiring decision in violation of Title VII.

However, courts are not as friendly in the Seventh Circuit (IL, IN, WS). There, a woman applied for a paramedic position and was asked during the interview, she was asked about the number of children she would have, her child care arrangements, and how her husband would feel about the job. The interviewer admitted that he did not ask male applicants the same questions. However, her claim failed because the court found that the evidence did not support the finding that her sex was a determining factor in the decision to hire a man. She failed to show substantial evidence that the interviewer relied on the gender stereotyping questions when making its decision not to hire her.

In the 6th Circuit, in the United States District Court for the Southern District of Ohio, a woman lost her case, even though the employer asked questioned about her marital status, her ability to travel and work with men, her child care arrangements. He did not ask male applicants the same questions. Because she failed to show that the decision not to hire her was tainted by bias, her case did not go forward.

Furthermore, Michigan, Wisconsin, California, and New Jersey all have strong state laws that may afford greater protections that federal laws.

 

Click here for legal memo regarding questions employers cannot ask