How to Get Sued For Discrimination

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Finding hardworking employees can be a daunting task, especially if you’re not well versed in the interviewing process. After all, you might be an independent owner who doesn’t even have a Human Resources (HR) department.

If you’re charged with interviewing potential employees, there are certain restrictions regarding the questions you ask. Though they seem harmless and may come up organically in conversation, a potential employee might be able to sue for discrimination if they feel an answer they revealed to you caused them to not be hired.

There are currently nine protected classes of employees: race, color, religion, national origin, sex, pregnancy, age, disability and citizenship. If information is revealed by the applicant based on those protected statuses and they aren’t hired because of it, then you could be facing a potential lawsuit.

Here are some questions you should avoid asking job applicants:

Where are you from?

We’ve all encountered someone with a mysterious or unusual accent that intrigues us. If you’re meeting this person in a personal setting, ask away. However, if you’re interviewing them, avoid it.

“This might be harmless conversation, but if the [potential] employee is from Afghanistan, it could lead to illegal discrimination,” said Donna Ballman, employee-sided employment attorney in Fort Lauderdale, Florida, and author of “Stand Up For Yourself Without Getting Fired.” “If there’s an answer that may reveal a protected status, be careful not to engage in any conversation that might lead the interviewee to think there’s a bias.”

Is English your first language?

Even though the United States doesn’t have a national official language, we primarily speak and do business in American English. Nevertheless, asking an interviewee if it’s their first language is a no-no.

“It seems like a pretty legitimate question because it can relate to communication, which is important for a lot of jobs, but it might elicit information about someone’s nationality or ethnicity, and those are both protected statuses under the law,” said Shira Forman, employment attorney at Sheppard Mullin in New York City, New York.

What happened?

When we see a co-worker, friend or loved one with a cast on their arm or using crutches, our first instinct is to ask them what happened and if they’re OK. But if you’re interviewing someone, shy away from this question.

“If the [potential] employee walks into the interview with a cast, asking, ‘What happened?’ might be a normal reaction from the interviewer. However, answering might cause the interviewee to disclose a disability or a worker’s compensation injury,” Ballman said. “I’d avoid the question.”

How long have you been married?

Even if the applicant has a ring on his or her all-important finger, you might have an issue with this question.

“A lot of people will ask what seems like innocuous questions such as, ‘How long have you been married?’ or ‘What does your husband do for a living?’ These are very conversational-type questions, but if it indirectly elicits information about someone’s marital status or someone’s sexual orientation, you might run into trouble,” Forman said.

Can you work on Saturdays?

Saturdays can be one of the busiest days for a quick lube, so asking this question seems like a no-brainer. However, it can lead to a potential discrimination suit.

“Many employers require weekend work, but if the employee has religious requirements that don’t allow them to work on a specific day, they may end up discussing religious accommodations before they even get a job offer,” Ballman said. “I’ve seen employers make the mistake of saying they won’t even consider employees who can’t work on Saturdays and won’t consider an accommodation such as evening or Sunday work. This could result in a discrimination complaint as Jewish, Muslim, Seventh Day Adventists and other employees may well have religious requirements that prohibit or limit their ability to work on Saturdays.”

Are you able to get a babysitter on short notice?

A good portion of today’s workforce is parents. If a potential employee brings up the fact they have children, tread lightly with your follow up response.

“You want to ask a question that’s more open ended, like, ‘Is there any reason why you wouldn’t be able to work here 9 a.m. to 5 p.m.?’” Forman said. “If the interviewee offers up information [about being a single parent,] that’s perfectly fine. But you don’t want to then follow up the single parent comment with, ‘As a single parent, are you able to get child care on the weekends if we need you?’ That wouldn’t be an appropriate question. What you want to focus on is whether the person is able to do the job, not whatever personal things might be preventing them from doing the work.”

Have you ever been arrested? Have you ever been convicted of a crime?

These questions are a little tricky. You’ll need to consult with your state’s requirements. Most states allow you to ask these questions, but some don’t.

“Various states have different legislations about what’s called ‘ban the box,’ which involves asking about someone’s criminal convictions or someone’s past criminal activity,” Forman said. “An employer would be wise to check their particular state’s law about whether they’re permitted to ask about someone’s past criminal history because it varies from state to state.”

Some states will let you ask these questions only when you’re about to officially offer the job to the applicant.

“In certain jurisdictions, you can’t ask that question until the moment you’re going to hire them,” said Kate Legge, member of Griesing Law, LLC in Philadelphia, Pennsylvania. “Let’s say you’re hiring someone to stand behind the till and the crime [they were convicted of] was theft. That goes directly to their ability to possibly stand behind your cash register, so you wouldn’t have to hire them.”

There are a few preventative measures you can take to lessen the likelihood of being sued.

“Have a written employee policy with a procedure whereby an employee can comfortably report any type of discrimination in the workplace or any perceived hostile work environment,” Legge said. “Then, have a procedure for how to do an investigation if someone does make an allegation of discrimination or harassment.”

Consulting a lawyer is also a key step if you find yourself being sued for discrimination.

“It’s always a good idea to consult a lawyer who specializes in employment law,” Forman said. “What the lawyer would do in most cases would be to investigate the person’s allegations. They have to go back and figure out what happened during the hiring process and determine what the reasons were the person wasn’t hired. It’s a matter of figuring out what happened and, if possible, defending against the allegation.”

In the end, being familiar with employment discrimination law and keeping impeccable notes will help you if a discrimination suit comes your way.

“It’s always a good idea to train members of HR and anyone who’s involved in the hiring process in employment discrimination law,” Forman said. “Make sure they’re well versed in what the federally protected statuses are and what types of questions are appropriate for the interviewing process, so you can avoid claims to the fullest extent possible. It’s also helpful when the people conducting the interviews keep good records; keep thorough notes about what they asked about, what type of information they learned in the interview and what sort of decision making went in to deciding who would get the job, because all of that can be really helpful in defending a claim.”

While there’s no such thing as an “illegal” interview question, avoiding questions that could reveal protected status information is key. If you’re unsure of what questions to ask, consult a professional. It might just save you from a potential lawsuit. 

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