5

This answer on Academia gave rise to a legal question.

Situation:

  • Academic employer is hiring for a position
  • As part of formal process of hiring they allow students (not employer's employees) to ask the candidate questions.
  • Students ask questions which – if asked by a real interviewer – would be in violation of protected status (gender, family status, pregnancy, etc.).

Does the fact that the question is asked by students (albeit ones participating in formal hiring process) protect the employer from being sued for hiring discrimination, the way they could be if an official interviewer employed by the employer asked the same question?

  • My guess is it depends on if/how the employer talks to the students. – StrongBad Dec 10 '16 at 1:53
7

In the US, there are separate regulations pertaining to different forms of discrimination for employment, thus there is no one-size answer. For sex, 29 CFR 1604.7 states:

A pre-employment inquiry may ask “Male........., Female.........”; or “Mr. Mrs. Miss,” provided that the inquiry is made in good faith for a nondiscriminatory purpose. Any pre-employment inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification, or discrimination as to sex shall be unlawful unless based upon a bona fide occupational qualification.

Let us take it for granted that sex is not a bona fide occupational qualification for an academic position. Thus the question is lawful only if there is a legal underlying interest. Suppose the question were "As a man, would you be able to able to effectively empathize with your nursing students?": this does not serve a legally allowed purpose, and only serves to indirectly restate a sexually discriminatory premise. This University of New Hampshire guidelines pages summarizes the basic interview prohibitions succinctly.

Notice that the language of the regulation is stated purely in terms of the existence of such an inquiry – it does not restrict such inquiries "as made by the CEO", or "as made by the hiring committee". It simply says that such an inquiry is not to exist. It is thus the university's obligation to assure that all administrators, faculty members, graduate students, undergraduates, staff members, and members of the general public who are allowed to participate in pre-hiring interviews know what kinds of questions are legal versus illegal.

  • While intuitively your interpretation in the last paragraph (which is what addresses the meat of my question - the Q assumes that the query was indeed illegal) seems right, is there case law to show that it is indeed interpreted that way by the courts? – DVK Dec 10 '16 at 2:15
  • 1
    Not yet as far as I know. EEOC does not give details on the nature of discrimination, so it's hard to find details of lawful vs. unlawful interview questions. The usual university theory is that only the regents hire and the department just recommends. I think this is an issue that universities will be forced to deal with explicitly, eventually. – user6726 Dec 10 '16 at 2:27
  • 1
    Perhaps there is still a question as to whether the student's question is a "pre-employment inquiry" for the purposes of the law. It's not clear to me what that phrase includes. – Nate Eldredge Dec 10 '16 at 3:31
2

There is actually no such thing as a prohibited question. It is best practices not to ask questions about matters upon which an employer is not allowed to discriminate. But, the discrimination is what is prohibited, not the questions. Asking a question is merely strong evidence that the matter was considered by the employer. But, in a context like this one, the evidence may not be nearly so strong.

  • 1
    How do you reconcile your statement that questions are not prohibited with the regulation saying "Any pre-employment inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification, or discrimination as to sex shall be unlawful" (emphasis added)? – phoog Jul 31 '18 at 22:33
  • 1
    Because it contains the qualifier "which expresses directly or indirectly any limitation, specification, or discrimination as to sex" (where it is not a bona fide occupational requirement). So, you can't say in an interview "we prefer to hire girls for this job" or "women can't be managers here", and in principle can't have a job description that is "waitress" or "house husband" (FWIW barista is a unisex term derived from Italian in which the term is not gendered). But, usually a name, a glance at a person, and thirty seconds of speech would reveal most or all protected categories anyway. – ohwilleke Jul 31 '18 at 22:45
  • 1
    @phoog In theory, I suppose, you could have a question like "Are you a guy, because we only hire girls?", but I think that it is more helpful conceptually to distinguish an overt statement of a discriminatory policy (which students in the example above wouldn't have the authority to make anyway), from a question about something which is not a matter about which the employer is allowed to make a hiring decision, which is evidence of potential discrimination but not per se unlawful. – ohwilleke Jul 31 '18 at 22:49
  • 2
    @phoog That pertains to the "unless based upon a bona fide occupational qualification" exception which is its own wild and crazy world of odd facts and tricky distinctions. – ohwilleke Jul 31 '18 at 23:44
  • 2
    Of course, thanks for pointing that out. You should start a side business designing, or at least naming, theme park rides. – phoog Jul 31 '18 at 23:49
0

These students are acting entirely on behalf of the prospective employer and fully represent it, so they need to behave accordingly. They ought to have been briefed on proper procedure. The employer is certainly fully responsible for whatever they say and do.

  • This adds nothing to the existing answers, and adds unnecessary and wrong statements to a low-quality version of them. – Nij Jul 31 '18 at 0:35
  • "Unnecessary" I take no issue with. Please elaborate on "wrong". – CCTO Aug 1 '18 at 18:38
  • The first sentence makes two wrong statements. The last sentence makes one that, if not wrong, is misleading. – Nij Aug 1 '18 at 19:30

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.