Was That Question Illegal?

By Varner, Katrin C.; Varner, Carson H. | Review of Business, Spring 2004 | Go to article overview

Was That Question Illegal?


Varner, Katrin C., Varner, Carson H., Review of Business


Abstract

The civil rights laws of the United States forbid employers to discriminate based on certain categories (race, religion, gender, age), but do not per se forbid questions regarding these categories. This paper will discuss the relationship between so-called illegal questions and legal liability.

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Introduction

Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, national origin, gender, and (as of a subsequent amendment, The Age Discrimination in Employment Act), age over 40. The Americans With Disabilities Act of 1990 (ADA) is a complex piece of legislation forbidding discrimination based on disability. The American government and the legal system take these laws very seriously and companies have paid millions of dollars in damages when found to be in violation of these laws. Not just in job interviews, but in all forms of business communication, it is recognized that the communicator should not even give the appearance of violating these laws. It is therefore frequently said that it is illegal for an employer to ask certain questions. In a job interview, for example, in addition to being impolite, it is also illegal to ask a candidate his or her age.

The law, however, forbids discrimination, not conversation. A rejected candidate might claim age discrimination after being asked his age and truthfully replying that he was 50, but what actually happens in court? At what point are claimants successful in showing discrimination based on questions asked during an interview or in some other form of business communication? This paper will examine situations where illegal questions have been asked and what the results have been.

There is another aspect to illegal communication, and that is the indirect illegal question. Suppose that during the interview there is a question about children, and a female candidate reveals that she has three young children at home. One's status as a parent is not explicitly listed as a protected class in any antidiscrimination laws. If, however, the candidate is not hired, a strong case could be made that it was the result of gender discrimination; an employer, the argument goes, would never fail to hire a man because he had children at home.

Antidiscrimination law applies not only to hiring and firing, but to all aspects of employment, including compensation and promotion. Are managers and employees therefore forbidden to discuss their personal lives for fear of lawsuits? This paper will examine these issues and make recommendations for business communicators in understanding and setting policies for dealing with American civil rights laws.

Conducting Interviews

In a recent job interview, the following questions were asked of a professional woman with an advanced degree:

1. What is your date of birth?

2. Did you attach a photo to your application?

3. What education did your parents have?

4. What was the employment of your parents?

5. How many children do you have and what are their ages?

6. Do you plan to have any more children?

7. What will you do with your children during the workday?

8. What does your husband think of you taking this job?

If you are American, you may well wonder on what planet this interview took place, and if you are from another country, you may wonder what the problem is. The interviewee in this case was an American-educated German national and the interview took place in Frankfurt, Germany. The interviewee later said that she felt she had come across as having a bad attitude. There was no callback.

Most American would regard these interview questions as "illegal" or, at a minimum, none of the interviewer's business. In most countries, however, such questions are the order of the day. Germany and many other countries have laws on the books that forbid job discrimination based on various protected categories, but these laws are seldom enforced. …

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