Interview Questions Legal

 

 

PRE-EMPLOYMENT INTERVIEWS AND QUESTIONS

Women are often curious as to whether employers are allowed to ask questions about their family and personal lives and their plans to have families. Unfortunately, there is no simple answer.  Even though women actually do assume most of the caretaking responsibilities in the majority of families, employers are not allowed to treat female workers less favorable merely on the gender-based assumption that a particular female worker will assume caretaking responsibilities or that those responsibilities will interfere with her work. Fortunately, there is a federal law that prohibits employers from asking gender-stereotyped questions of employees in the interview stage.  Additionally, some states have laws that govern this issue as well.

 

What are Employers Generally Prohibited from Asking?

  • Employers can not ask about pregnancy, marriage, childcare arrangements, earnings of 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, making assumptions about the work habits of women with children, and penalizing 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.[1]

 

What Is the Applicable Federal Law?

  • Employers can not ask questions about the personal lives of prospective employees if it would be in violation of 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 and is the most relevant type of discrimination when considering pre-employment discriminatory interview questions.[2]

 

What is Gender Stereotyping?

  • Gender stereotyping cases turn on whether the decision-maker has indiscriminately applied to individual women the true or false attributes ascribed to women as a group.[3] 
  • Sex stereotyped interview questions focus an interviewer’s attention upon the limitations stereotypically associated with her gender, rather than on characteristics that define leadership and achievement, typically male characteristics.  One common example is whether her children or her husband will take precedence over her work, as the assumption is often that women are the primary caretakers.[4] 
  • The interview stage poses a particular risk that stereotyping will take place because the employer has only limited knowledge of the individual.[5] 
  • However, 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.[6]

 

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.[7]
  • 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.[8]
  • Female job applicants should be forewarned that employers can avoid liability by showing that they would have made the same decisions even if they had not allowed gender to play such a role. [9]

 

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

 

·      An employee can and should ask the employer’s question has anything to do with the requirements of the job.  They are not required to answer any questions that they feel are discriminatory in nature.

 

 

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

  • Contact the Equal Employment Opportunity Commission closest to you within 180 days of the discriminatory action.  They can be reached at 1-800-667-4000.  Additional information, including office locations, can be obtained at: www.eeoc.gov.[10]
  • If the EEOC finds reasonable cause after investigation, it first attempts conciliation and, failing that, brings a civil suit in federal district court.[11]
  • A job applicant can also contact an attorney on their own. One of the best ways to find an attorney is through a local Bar Association.[12]

 

Does it Matter Where the Job Applicant Lives?

  • In the Second Circuit (CT, NY, VT)[13] and Eighth Circuit (ND, SD, NE, MN, IA, MO, AR)[14], 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.[15]
  • 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.[16]

 

 



[1] Information obtained from Rebecca Pontikes, Esq.  She is an employment lawyer in Boston, MA, at the firm of Davis, Pontikes and Swartz.

[2] 42 U.S.C.A 1981, Price Waterhouse v. Hopkins, 490 U.S. 228, (1989)

[3] Tracy L. Bach, Gender Stereotyping in Employment Discrimination: Finding a Balance of Evidence, and Causation Under Title VII, 77 Minn. L. Rev. 1251, 1254 (May 1993)

[4] Heather K. Gerken, Understanding Mixed Motives Claims Under The Civil Rights Act of 1991: AN Analysis of Intentional DIscrimiantion Claims Based on Sex-Stereotyped Interview Question, 91 Mich. L. Rev. 1824, 1826-1827 (June 1993).

[5] Id. at 1827.

[6] Id.

[7] Bach at 1266, citing Price Waterhouse, 490 U.S. at 244. 

[8] Price Waterhouse, 490 U.S. at 250.

[9] Bach at 1266-1267,  citing Price Waterhouse 490 U.S. at 245.

[10] www.eeoc.gov, last accessed January 27, 2009

[11] cite

[12] cite

[13] Barbano v. Madison County, 922 F.2d. 139 (2d Cir. 1990). In this case, Barbano brought suit after being turned down for a director position at the Madison County Veterans Service Agency.  In her interview, one member of the committee told her that “he would not consider some woman for the position”  He also asked about her childbearing plans and whether her husband would approve of her transporting male veterans.  She pointed out that the question were discriminatory, but none of the interviewers agreed, nor did anything to stop it.  The court found that the questions were discriminatory and irrelevant. 

[14] King v. Trans World Airlines, Inc, 738 F.2d 255 (8th Cir, 1984).  In this case, the plaintiff met her burden of persuasion under Title VII by demonstrating that the interviewer asked questions about pregnancy, childbearing, and child care and did not pose similar questions of male applicants, thereby treating her differently during the hiring process.

[15] Bruno v. City of Crown Point, 50 F.2d. 35 (7th Cir. 1991), cert. denied 122 S. Ct. 2998 (1992). The lower court found sex discrimination under Title VII, but the Seventh Circuit reversed, finding that there was no substantial evidence that her sex was a determining factor in the decision to hire a man instead of Bruno. 

[16] Stukey v. United States Air Force, 790 F. Supp. 165 (S.D. Ohio 1992).