Client Dev & Marketing
A couple years ago I was involved in an interesting discussion regarding legal and illegal questions.. One of the H.R managers was stating that there was no such thing as an illegal question, that Yes, one could ask a candidate how old they were in an interview; or how many months pregnant they were, or what religion that they belonged to.
Of course I had been taught something totally different. That it was black and white, you just Couldn’t ask those questions.
During the conversation, my peer challenged the "illegal" question myth, he asked me to show him, and my other peers where exactly did the EEO or DOL define the so called and elusive "illegal question".. * see below for clarification.
Well, having always been inclined to take on a challenge, and especially since my curiosity was peaked, I decided to take on the initiative and put in a call to the Office of the Civil Rights Division at the United States Department of Justice.
There was a need now to get the Real Skinny on this one. What WAS the REAL Down Low? Are HR managers, recruiters, or hiring managers really prohibited in Asking what we had always been taught was the "illegal question" and was there really such a thing as an "illegal question"
As they so Eloquently put it - "America is a free country and Employers are Free to ask what ever they want to a candidate.."
They went on to inform me that it isn’t the asking the question in itself that is illegal; it is what you do with the information that can ultimately become a problem; It is what can ultimately happen if you Do ask the question to someone who may be of protected and yes, even non protected class; and, they ultimately feel that their candidacy was rejected for the position because of the information that was obtained from answering the question.
So, what happens? Well, now the Onus is on the company to prove that there was no discrimination.. the Recruiter or hiring manager would be forced to prove that no discrimination had occured, and hopefully hadn’t discriminated in the past, either.
And, if you notice here we didn’t use the word Intent, meaning you could prove that you did not intend to discriminate. Because unfortunately, if it was determined that discrimination did occur, all the best intent in the world would not protect you.
Under federal and state EEO laws, very few questions are prohibited from being asked.* (questions regarding disability are expressly prohibited ). But, even with that being said, the EEOC ‘s main responsibility to promote equal employment opportunities compels them to look with "extreme disfavor" on employment inquiries regarding an applicant’s race, sex, age, religion, color, national origin or disability. Questions that can disproportionately screen out individuals who are diverse, belong to a minority group.
Employers, recruiters must demonstrate that their selection criteria, including questions are in Fact Job Related, objective and not dependent on the employers subjective judgment and emotions, and, are consistent with business necessity , specifically related to the job /s the candidate is interviewing for.
Yes it is true that You may be using this information for inclusion, but unfortunately someone else- maybe at your office, a hiring manager, or maybe even your client - may not use it on in a way that would be considered objective. Maybe they may not even think that You are when you disclose this information.
And, of course, there is also a possibility that the rejected candidate felt that they had been discriminated, contacts the EEOC, and which unfortunately leads to an investigation; one that is not only time consuming, but can become expensive and a royal pain to defend yourself; and which now has you and your company on a radar.
To help you avoid common pitfalls in the interview process that could leave your company exposed to a claim for employment discrimination, begin by sticking to the following two practices -Ask only job related questions and subject each candidate to the same hiring practices
So if it Ain't job related it is best not to ask.
ABOUT KAREN MATTONEN, CAC, CSP
Karen Mattonen started a career in Human Resources when she served as a Recruiter for Snelling Corporation. Leveraging her tenure with Snelling, Karen founded Advanced Career Solutions in 1997 focusing on the HVAC and Mechanical Construction industry. Her reputation for excellence is echoed in the satisfaction of clients and candidates she has serviced nationwide. Furthermore, Karen is esteemed for sharing her expertise in Recruitment Education, Ethics and promoting self-regulation for the Recruiting industry.
She has a new and future-oriented vision of what recruiting can and should become: a profession we can be proud of for its ethical standing, professional conduct and ability to build great organizations. Her doing-well-by-doing-right philosophy is shaking up the status quo in an industry that needs to be shaken. She does this with conviction, leadership, and a distinctive voice that cries out for change.
Outside of the HR community, Karen Mattonen has been cited by Microsoft as a resource in how to use Microsoft Outlook as an ATS. She has also served as the Marketing and Public Relations Director for the 3rd largest city in Utah.
Her passionate and tireless advocacy has led her to create HireCentrix - The Pulse of H.R, Regulation, Retention, Recruiting and Risk Management http://www.hirecentrix.com/ href="http://www.hirecentrix.com/" data-mce-href="http://www.hirecentrix.com/">www.hirecentrix.com. Hirecentrix is a company dedicated to providing training to the HR, recruiting and staffing industries, which includes a special focus on the ethical and legal dimensions through offering a full service resource for individuals to share and communicate, obtain current and accurate information, acquire and provide education and learning within the quickly expanding, diverse and rapidly changing Recruiting and Human Resource climate.
Karen has achieved accreditation as a California Accredited Consultant (CAC) through California Staffing Professionals. She has also gained her Certified Staffing Professional Certificate (CSP) through American Staffing Professionals. (www.americanstaffing.net)
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