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I often see articles saying questions are illegal to ask when interviewing a candidate. Something like this is a good example:

  • Are you planning on becoming pregnant in the near future?
  • Are you married?

etc. From the EEOC site it's obviously illegal to use this to hire based on this information.

However, is it actually illegal to ask this question or only illegal to act upon it? Does this change for a smaller company (say of <15 people, which is what the EEOC policies cover)?

Also, assuming that it's legal for a <15 person company, does that change if an intermediate such as a recruiting company exists which is larger than 15 employees?


Also, I understand that practically speaking it's a dumb question to ask and would never recommend it because there's effectively no way to take action based on the answer which is not illegal, if your company size is 15 or more (or ever depending on the answer to my questions). I am not actually sure if you legally could act on this with a smaller company as my read of the EEOC docs isn't clear.

I'm also asking this because I am curious given how often this comes up and how quickly people label such questions as "illegal."

  • People may call questions illegal if they're legally dangerous to ask. If you are interviewing a job candidate and ask "Are you married?", the candidate isn't going to know if you base your decision partly on the answer. If you don't hire the candidate, the candidate may well make trouble for you, and might conceivably win a lawsuit. Since it hurts nothing if the interviewer just thinks the question is illegal, it's a convenient way to refer to it. – David Thornley Sep 28 '18 at 19:59
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It ultimately depends on what Congress said when the relevant law was passed pertaining to that form of discrimination, how the enforcing agency has written the regulations, orders that have been issued, and how the courts have interpreted the law and regulations.

EEOC Notice 915.002 states that

Under the Americans with Disabilities Act of 1990 (the "ADA"), an employer may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer.

Such questions must be "job-related and consistent with business necessity". There is a statutory underpinning to this declaration, 42 USC 12112(d) that

The prohibition against discrimination as referred to in subsection (a) shall include medical examinations and inquiries

and

Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.

except that

A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.

EEOC also says that

In general, it is assumed that pre-employment requests for information will form the basis for hiring decisions. Therefore, employers should not request information that discloses or tends to disclose an applicant's race unless it has a legitimate business need for such information.

Such inquiries are illegal in the sense that the EEOC "prohibits" it, and in the case of disability there is a direct statutory mandate to prohibit it. There is a legal principle, "Chevron deference", that says that the courts should defer to an agency's interpretation as long as Congress hasn't directly addressed the question and the interpretation is not unreasonable.

Title 29(A)(35)(B) states the standards for detecting age discrimination for entities receiving federal funds, and while age discrimination is illegal, asking a person's age is not prohibited by specific regulation. The EEOC provides this manual regarding general race and color discrimination, and the section on "Evaluating employment decisions", where they say

determining whether race played a role in the decisionmaking requires examination of all of the surrounding facts and circumstances. The presence or absence of any one piece of evidence often will not be determinative.

So asking a person's race is not per se a violation of the law, but it is an act interpreted by the EEOC to be evidence of race discrimination. On the other hand, asking about disability is totally illegal so there's no "totality of evidence" to the process. The footnotes in the manual point to relevant case law: there is no case law that says "asking a questions about a protected category is per se proof of discrimination", but it can be used as part of a pattern of evidence.

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I think it is how much you want to get hired. If you look at the reference you provided it says "Discrimination." It is illegal to discriminate based on above referenced answers. Discrimination involves an action, it not merely a question.

The website gives an example for harassment:

Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted)

However how would one prove discrimination if you did not get hired? Some actions are significantly harder to prove.

It seems that might be the hardest part. What if somebody with equal qualifications got hired, and you being a pregnant or planing to become pregnant woman did not? Lets suppose you know that for a fact.

So you file an action, with the court against the company. At this point the company could argue, that the management made the hire based on some intrinsic qualities in the candidate. (He got good vibes from him.)

At this point unless you had some other evidence, like them systematically turning down pregnant women or those who plan become pregnant, you have no case.

I hope you found this helpful.

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