Discrimination in hiring practices is illegal. Unfortunately, both conscious and unconscious bias can still play a role in staffing decisions. In both the application and interview phase, it is possible that members of search committees can make judgements based on factors that are not relevant to your qualifications.
What kinds of identifying information should you include on your resume?
How can you navigate a job search without revealing information about yourself that is none of the potential employer’s business, without coming off as hostile?
This article will first review what statuses are federally protected from discrimination in the job search. Read on to see examples of problematic questions along with specific strategies to successfully navigate them.
Finally, learn about your options in the event that you think you have been discriminated against while interviewing for a job.
1) Illegal Discrimination: Who Is Protected?
Title VII of the Civil Rights Act of 1964 prohibits employers with 15 or more employees from basing hiring decisions on:
- National Origin
The protected status of sex is broadly defined and generally includes marital, pregnancy and parental status since they have historically been consistently used to discriminate against women.
The status of LGBT protections is currently somewhat in flux. The Equal Employment Opportunity Commission (EEOC), in charge of enforcing discrimination in employment, currently interprets the sex provision of the Civil Rights Act to include protection for sexual orientation and gender identity.
However, The United States Department of Justice (DOJ) has recently been pushing against this interpretation, arguing that LGBT people are not protected by this provision of the Civil Rights Act. Depending on how aggressively the DOJ defends their position, protection for LGBT people may be under threat.
The Americans With Disabilities Act of 1990 prohibits discrimination against people with disabilities unless they specifically disqualify someone from performing essential job duties and cannot be reasonably accommodated.
Title II of the Genetic Information Nondiscrimination Act of 2008 prevents employers from discriminating against potential employees based on genetic information, or requiring any genetic testing as a condition for employment.
The Age Discrimination in Employment Act of 1967 protects people over the age of 40 from being discriminated against in the hiring process on the basis of their age.
2) Discrimination and Application Materials
The first opportunity you have to shine to potential employers is your application package – resume, cover letter, and references. These documents will ideally focus on specific qualifications relative to the job you are seeking.
If you suspect that you may be discriminated against for any of the previously mentioned reasons, then you are under no obligation to disclose at this stage.
In fact, it is probably not strategic unless it is unavoidable, such as your name giving away your gender.
There are two reasons why it might be to your advantage to disclose your status in your application materials. The first is if you know that there is a specific recruiting initiative going on that may make identifying your status a competitive advantage. If that is the case, don’t feel bad about tactfully disclosing in your application materials. In a world where discrimination is a part of daily life, you deserve a break!
The other reason why disclosing in your application materials may be a strategic choice is if you suspect that your identity or experience with a disability gives you unique qualifications for the job.
One example would include if you happen to be mobility impaired and are seeking a job working as a career counselor for disabled high school students. In this case, you can make a compelling case that your life experience as a result of your disability gives you unique perspective and additional insight to the needs of the population you would be serving.
3) Discriminatory Interview Questions
Questions about those statuses protected under federal law remain common in job interviews. Examples you may come across include:
- Are you planning to have children?
- Where did you learn to speak Spanish?
- What religious holidays do you observe?
- How old are your children?
- Do you have any disabilities?
- Will you need to take time off work if one of your children is sick?
One of the trickiest parts of navigating potentially discriminatory questions is assessing intent. In fact, several of the questions above could be an attempt to connect and make small talk, depending on the context. It is not uncommon to try to break the ice, particularly before an official interview, with conversations about your personal interests or attempts to establish some common ground.
These kinds of questions are still inappropriate, and trained human resources professionals won’t ask them. That being said, everyone at the organization may not have up to date training on best hiring practices.
If you are asked an inappropriate question, try to assess the intent before you react.
Reacting with hostility to a question genuinely asked to try to reach out and connect with you is a sure fired way not to get the job.
4) Strategic Answers to Potentially Discriminating Questions
Most folks are more interested in navigating problematic questions in the best way possible. After all, the goal is to land the job! There are several ways to make the most of problematic interview questions, and shine despite them.
The three strategies below, along with an example of each, will help you prepare in the event these kinds of questions pop up during your next interview.
1) Redirect. Use your answer to redirect the focus of the interview towards your qualifications.
- Q: “What child care arrangements have you made?”
- A: “I had an excellent record of attendance and performance at my last job. I have a strong work ethic and am invested in being a reliable member of my team. For example, my last position sometimes required long weekend hours, and I never had a problem with that schedule.”
2) Read the room. Try to assess the best intent possible for the question relative to specific job responsibilities, then address those specifically, while leaving your status out of it.
- Q: “How will you handle being supervised by younger employees?”
- A: “I think a team functions best when people respect the chain of command. My experience has been that everyone has something to teach me, so I have become a good listener. One of my strongest qualities is my passion for learning new things.”
3) Turn the tables. If an interviewer is persistent with inappropriate questions, then you may have to be more direct. One way to handle this is to ask them why the information they are seeking is relevant to the job. Take their answer as a jump off point to discuss your qualifications.
- Q: “When did you come to the United States?”
- A: “Can you help me understand how that is relevant to this position?”
- Q: “We think it is important that the person that fills this position is comfortable in social settings to develop relationships with potential clients.”
- A: “I agree that social networking is very important to cultivating long term sales. As my portfolio indicates, I was able to boost annual sales over the last eight quarters in my previous position. A great deal of that success was from establishing real connections with potential clients.”
Further tips for handling these kinds of questions include:
- Keep your cool. Even if you think the question is inappropriate, you have a chance to keep your composure and demonstrate professionalism. Emotional responses will not help your chances of landing the job.
- Maintain perspective. The person doing your interview may be an outlier at the company. Remember that they may only be a gatekeeper to an otherwise great work experience.
- Focus on the positive. It may be difficult to do, but continue to look for chances to highlight your qualifications and experience relative to the job throughout the interview.
5) Proving Discrimination in the Hiring Process
The legality of interview questions is somewhat of a grey area, largely because of the way discrimination lawsuits are prosecuted. Generally speaking, the intent to discriminate has to be made from a larger set of evidence, such as proof that actual hiring decisions were made based on consideration of protected statuses. This is because the laws governing the protection of specific groups are based on hiring decisions, not specific questions.
If an employer can demonstrate reasons for hiring a qualified candidate other than you, it can be the basis for dismissing a discrimination claim. As you might imagine, it is pretty easy to make a case for why a person was hired, particularly in retrospect.
It is probably because it is so difficult to prove discrimination at the interview stage that such questions remain fairly common practice, despite efforts of human resources and equal opportunity representatives to try to curb such interviewing habits.
If you want to pursue legal redress if you believe you have been asked discriminatory questions during an interview, your best bet is to immediately contact an attorney specializing in employment law for a consultation.
They have expertise about the necessary burden of proof and local knowledge of such cases in your area. For example, if the company you have applied to has a track record of discrimination, there may be an ongoing class action suit that you may qualify to join.
6) Do You Even Want to Work for This Company?
Finally, there is nothing wrong with deciding that you do not want to work for a company with the kind of regressive culture that makes room for discriminatory interview questions in the first place. At that point, there is almost no risk to directly confronting the problem should you decide that the principles at stake are worth investing your energy into.
For some people, taking action towards the bigger picture can bring some closure to the sense of injustice that comes from being a target of discrimination. For example:
- If you find the questions too blatant or offensive to tolerate, you have the right to terminate the interview at any time.
- You may decide to contact the Human Resources department of the company and make them aware of the questions you were asked during your interview, and who asked them.
- You could choose to contact the Equal Opportunity in Employment (EOE) office, if the company has one, to register your complaint.
- If the location of your interview is a branch of a larger corporate entity, you can contact the headquarters of the organization.
- You have the option to call the supervisor of the interviewer to let them know about your experience.
- You can utilize anonymous online tools that collect and display employee experiences with specific companies, alerting future applicants to beware.
It is important to understand before taking such actions that you are unlikely to receive any direct redress to the problem. It may even close the door to working at that company in the future. However, large scale social change is often a function of the pressure created from the actions of individuals.
Over the course of the last decade, employers seeking to attract and retain the best talent have learned that discriminatory practices operate against their efforts. Companies are getting better with better hiring practices as a result.
If you have had a bad experience, don’t let that slow you down! Move on to the next opportunity with a positive attitude. There is no reason to give those that would discriminate against you the victory of keeping you from the career of your dreams!