6

Oftentimes due to public policy considerations or for a multitude of other reasons employers can not ask particular questions during an interview or just in general in the workplace. Suppose that an employee or a perspective employee (in an interview) lies on one of these disallowed questions.

Suppose the interviewed employee was hired. Can the employer fire for lying on such a question? Can an employee fire a current employee for falsely answering? Does this count as cause for firing?

Can an employer retaliate by firing the employee for such a lie if they found out it was a lie later? Is lying in such circumstances illegal or otherwise fraudulent?

  • 1
    1+ from me for this being an interesting question. With that said, one point for improvement: is this an actual situation that you face or purely hypothetical? Can you give some kind of context as to what the question was? The reason I ask is to determine whether there could be any conceivable harm to the company based on the incorrect answer. If I claim to be 38 instead of 34 it's hard to imagine how that could've possibly harmed the company. If I claimed to have 20 years of experience instead of 12 then there's an obvious harm. – EJoshuaS - Reinstate Monica Feb 26 at 2:15
  • 1
    One thing I can think of: would you not have hired them if they had answered the illegal question differently? What difference does it make if they lied about something that you're not allowed to consider in the first place? – EJoshuaS - Reinstate Monica Feb 26 at 2:17
  • Purely hypothetical. I was just reading an article where married women seemed to be at a disadvantage in getting hired for a job that requires them moving a significant distance. Ie., questions like what would your husband do if you got this job? I was wondering if someone could lie and simply say they are estranged or something similar. – Viktor Feb 26 at 2:17
  • Hmmmm.... I'm not a lawyer, but wouldn't any information supplied as part of an answer to an illegal question also be illegal for the employer to consider in the first place? Or am I mistaken? (If so, then I can't imagine how the employer could reasonably argue that they were harmed by the lie). – EJoshuaS - Reinstate Monica Feb 26 at 2:20
  • 1
    I'd be curious to know the answer too from someone who's a little better-educated in that area. My intuition is that they can't claim they were harmed, but I'd be curious if someone who's an actual lawyer would confirm that. – EJoshuaS - Reinstate Monica Feb 26 at 2:26
3

Is it legal to retaliate against an employee who answered falsely when asked an illegal question?

It depends. It is important to ensure we understand the distinction between (1) questions which are illegal in and of themselves, and (2) the illegality of hiring, discharging, or failing to hire based on a candidate's/employee's answer(s) or attributes. You yourself might have been aware of the difference beforehand, but your question is a good occasion for clarifying a general misconception.

In instances of the first category, it would certainly be illegal to retaliate against the employee insofar as the falsehood is traceable to the employer's violation of the law. Examples of this category are sections 432.3(b) ("An employer shall not [...] seek salary history information, including compensation and benefits, about an applicant for employment") and 432.7 ("An employer [...] shall not ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction") of the California Labor code.

Scenarios of the latter category are more intricate, since an employer might prove that his decision to discharge the employee falls outside of conduct sanctioned by statute. For instance, 42 USC § 2000e-2(k)(1)(A)(ii) does not outlaw --at least at a federal level-- questions about the individual's protected categories (such as sex, religion, or national origin). It only outlaws the decision making that is influenced by the protected categories which are the subject matter of the interview questions. The example you gave ("what would your husband do if you got this job?") serves to illustrate the difference, putting aside that questions of that sort might be intended to indirectly ascertain the candidate's marital status.

Let's assume that the employer seeks to hire a waitress, and that the jurisdiction at issue outlaws discrimination on the basis of employee's marital status but not the questions about it.

The employer has a cognizable interest to avoid employing any waitress whose husband is an overly jealous person with propensity to attack male clients. The waitress's lie when answering that question (for instance, by fraudulently representing that she is single or that her husband is ok with her employment as waitress there) contravenes the employer's legitimate interest to protect its clients.

In that context, the employer's discovery that the employee lied during the interview gives reasonable grounds for discharging that employee. After all, the employee's intentional misrepresentation only strengthens the employer's suspicion of being at greater risk (of liability toward clients) than the employee is willing to admit.

For the employer to prevail at law, it would need to be proved that the reason for discharging the female employee was not her marital status itself, but the employee's concealment of a risk that is a matter of employer's lawful concern.

| improve this answer | |
  • I don't see the argument that a prohibition against married people doesn't prohibit discrimination against people married to jealous people to be very viable. And putting only married people in a position of having a motive to lie seems a bit discriminatory. – Acccumulation Aug 8 at 19:40
  • @Acccumulation The example illustrates the difference between "she is married, so we are not hiring her" and "her being married to an overly jealous person significantly increases the risk our male clients might be attacked, and therefore we will not hire her". The former is unlawfully discriminatory whereas the latter ponders the risk of liability related to the type of person to whom the candidate/employee happens to be married. – Iñaki Viggers Aug 8 at 20:00
  • Are you arguing that anti-marriage discrimination laws allow employers to discriminate against married people if being unmarried is a bona fide qualification? Or are you arguing that discriminating against a subset of married people doesn't violate anti-marriage discrimination laws? – Acccumulation Aug 8 at 20:13
  • @Acccumulation The latter. Discriminating against reasonably defined subset (i.e., one associated to a higher risk of liability such as physical attacks) weakens or defeats the notion that the candidate(employee) was discarded(fired) merely for his marital status. And if the candidate/employee lied about that in the interview, that concealment would cause greater concern insofar as it hindered the employer's assessment of risks. – Iñaki Viggers Aug 8 at 21:03
  • So it would be legal to ask "Do you have a husband or boyfriend who was convicted in the past or is in court right now for attacking a customer of a bar or restaurant where you are or were working?" And legal to take a "Yes" answer as a reason not to hire you? – gnasher729 Aug 9 at 0:16
-2

Lying is never illegal on a job interview if I'm not mistaken. If it was everyone would be in jail. If it's a disallowed question I seriously doubt any judge would care.

| improve this answer | |
  • 3
    Lying may not be illegal but it can get you fired. The first 2/3rds of your answer are irrelevant. Your last sentence answers the question but seems more intuition than knowledge on the law. Do you have any case law to back it up? – Andy Feb 26 at 1:34
  • 4
    There are more kinds of 'illegal" than crimes. Lying can be illegal in a job interview with remedies including providing a defense to employment violations of certain kinds by the employer since it would constitute good cause to fire. The issue posed is whether there is good cause to fire overriding other laws against firing for illegal questions which is an important question without an easy answer. – ohwilleke Feb 26 at 1:34
  • Good Stack Exchange answers should be based on facts, references, and evidence, not just hunches based on your intuition. – EJoshuaS - Reinstate Monica Feb 26 at 2:10
  • Lying absolutely can be illegal. It can be fraud, and if you're applying to a government job, that can open another can of worms. – Acccumulation Aug 8 at 19:43

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.