Job Interview - Legal Issues

Legal Issues

In many countries laws are put into place to prevent organizations from engaging in discriminatory practices against protected classes when selecting individuals for jobs. In the United States, it is unlawful for private employers with 15 or more employees along with state and local government employers to discriminate against applicants based on the following: race, color, sex (including pregnancy), national origin, age (40 or over), disability, or genetic information (note: additional classes may be protected depending on state or local law). More specifically, an employer cannot legally "fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privilege of employment" or "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee."

The Civil Rights Act of 1964 and 1991 (Title VII) were passed into law to prevent the discrimination of individuals due to race, color, religion, sex, or national origin. The Pregnancy Discrimination Act was added as an amendment and protects women if they are pregnant or have a pregnancy-related condition.

The Age Discrimination in Employment Act of 1967 prohibits discriminatory practice directed against individuals who are 40 years of age and older. Although some states (e.g. New York) do have laws preventing the discrimination of individuals younger than 40, no federal law exists.

The Americans with Disabilities Act of 1990 protects qualified individuals who currently have or in the past have had a physical or mental disability (current users of illegal drugs are not covered under this Act). A person may be disabled if he or she has a disability that substantially limits a major life activity, has a history of a disability, is regarded by others as being disabled, or has a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor. In order to be covered under this Act, the individual must be qualified for the job. A qualified individual is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Unless the disability poses an "undue hardship," reasonable accommodations must be made by the organization. "In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." Examples of reasonable accommodations are changing the workspace of an individual in a wheelchair to make it more wheelchair accessible, modifying work schedules, and/or modifying equipment. Employees are responsible for asking for accommodations to be made by their employer.

The most recent law to be passed is Title II of the Genetic Information Nondiscrimination Act of 2008. In essence, this law prohibits the discrimination of employees or applicants due to an individual’s genetic information and family medical history information.

In rare circumstances, it is lawful for employers to base hiring decisions on protected class information if it is considered a Bona Fide Occupational Qualification, that is, if it is a "qualification reasonably necessary to the normal operation of the particular business." For example, a movie studio may base a hiring decision on age if the actor they are hiring will play a youthful character in a film.

Given these laws, organizations are limited in the types of questions they legally are allowed to ask applicants in a job interview. Asking these questions may cause discrimination against protected classes, unless the information is considered a Bona Fide Occupational Qualification. For example, in the majority of situations it is illegal to ask the following questions in an interview as a condition of employment:

• What is your date of birth?
• Have you ever been arrested for a crime?
• Do you have any future plans for marriage and children?
• What are your spiritual beliefs?
• How many days were you sick last year? Have you ever been treated for mental health problems?
• What prescription drugs are you currently taking?