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I just learned that, in the US, literally asking certain questions on a job interview (as opposed to making discriminatory decisions based on the answers to those questions) is illegal (as found here and here).

It turns out, however, that asking itself is not a punishable offense. Employer can get away with asking those questions until someone uses them as evidence of discrimination in a court case.

Such evidence, by its nature, is only circumstantial. That is, it does not directly show discrimination (after all, the interviewer could be simply doing small talk / assessing soft skills when asking "what is your gender identity?" — rather than having discriminatory intent in mind). But, in conjunction with other corroborating evidence (e.g. rejection despite apparent fitness to work, and acceptance of a less fit applicant who is of a different answer to those question) these questions could indeed prove discrimination.

Now, what standard of proof? "Balance of probabilities" (as for a tort), or "beyond reasonable doubt" (as for a crime)? Is such discrimination a crime in the US, or tort, or what?

Is it the case that those questions prove discrimination just because the statute says they do, despite that otherwise they would not (especially given that state of mind of the employer is not determinable)?

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  • You might find this interesting: castle.eiu.edu/alsb/Archives/JELLvol12/…. There are plainly illegal questions that alone provides a cause of action and some others that are highly indicative of discriminatory motive. In any case, discrimination in employment context is a civil action. – xngtng May 15 '20 at 13:28
  • Is there a related question that asks at what point during the hiring/employment process an employer would be above reproach to ask what a prospective employee's preferred personal pronoun is? On what planet in the year 2020 is gender identity small talk? – Mazura May 15 '20 at 23:45
  • @Mazura What small talk can be about is pretty subjective. In any event, asserting that whoever asks about gender identity necessarily has some sort of prejudice in relation to that is just frantic. – Greendrake May 16 '20 at 0:28
  • Asserting that whoever asks about gender identity necessarily has some sort of related prejudice may be “frantic” in general (although probably not even then), but when asked in the context of coming in for a job interview, it’s more likely than not accurate. And if not, the job interview is indisputably where such a prejudice would manifest itself and, therefore, in seeking to avoid subjecting people to such prejudice, the law errs on the side of just not getting into that topic, period. – A.fm. Mar 17 at 15:24
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At the federal level, employment discrimination as prohibited here is at its core a tort rather than a crime. Probably the most pertinent first part of the law is Subpart B, which encompasses procedures. The EEOC (Equal Employment Opportunity Commission) may receive allegations of a violation, and there is a procedure for deciding on the merits of the case. After charges are filed, there is an investigation by the EEOC, which may include a public hearing. Based on the investigation, the commission may dismiss the charge (technical flaws in the complaint); they may issue a letter of determination to that effect if they find that there was no reasonable cause for the complaint. They can also encourage a negotiated settlement. In making this determination, the commission follows its own guidelines, as encoded in the regulations. So if the commission determines by its rules that there was a violation, the courts will generally defer to that finding unless the finding is contrary to what Congress said. If there is no dismissal or settlement, then they issue a determination that there is reasonable cause (§1601.21). Then there is a procedure to rectify unlawful practices, which includes the possibility of a conciliation agreement.

Finally, starting at §1601.27, we get to the point that somebody might get their day in court. If the accused still refuses to relent on whatever point was at stake, the matter can go to trial:

The Commission may bring a civil action against any respondent named in a charge not a government, governmental agency or political subdivision, after thirty (30) days from the date of the filing of a charge with the Commission unless a conciliation agreement acceptable to the Commission has been secured

But also, the aggrieved can take the accused to court at any time. The allegation then must be proven by a preponderance of the evidence.

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  • "Charges" you say — is this word even used for non-criminal wrongdoings? Also, essentially you answer means that an employer can keep asking those prohibited questions and ignore any points that they're illegal so long as the employer is sure they will not prove discrimination in court, is this correct? – Greendrake May 15 '20 at 2:09
  • @Greendrake A charge is sometimes used in some non-criminal contexts, at least in US and Canada, for formal accusations of an offence (be it civil, traffic, adminstrative or even academic) made by/to public or quasipublic bodies. EEOC calls a complaint a charge of discrimination (as is the term used by the law); there is no criminal offence provided by the law. I don't think EEOC can issue civil penalties for discrimination alone either, the "fines" companies pay are to compensate victims. – xngtng May 15 '20 at 13:06
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Neither a tort nor a crime

Torts are civil wrongs. Crimes are offences against the state which are deemed criminal. Both have roots in common law although in many jurisdictions they have been codified.

The cause of action for unlawful discrimination is statute law. That is, it is what it is because the statute says it is. The offence against the state is a civil offence - not a criminal one. The cause of action between private parties is unlawful discrimination. In both the standard of proof is civil “balance of probabilities” or “preponderance of evidence”.

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  • So why is it not a tort? – Greendrake May 16 '20 at 5:47
  • For the same reason it’s not an equity or contract based cause of action. It’s a statutory cause. – Dale M May 16 '20 at 6:21
  • You can have a statutory tort. – D M May 16 '20 at 15:34
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Tort law is invoked in discrimination cases in: Gross v. FBL Fin. Servs., Inc., Staub v. Proctor Hosp., and University of Texas Southwestern Medical Center v. Nassar. "In these three cases, the use of tort law commands a majority of the Court. The use of tort law is also tied to textual claims, where certain words or concepts in discrimination law are directly interpreted through the lens of tort law." Sandra Sperino, "Let’s Pretend Discrimination is a Tort,” 75 Ohio St. L.J. 1107 (2014).

I agree that discussion of one's gender identity, sexuality, or other personal information does not constitute small talk. "So, hey, how old are you today? Nice personal pronouns we're having aren't they?" Yeah, No.

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Employment discrimination is not generally a criminal matter without a further showing that it constitutes a criminal act to deprive someone of their civil rights under color of state law, something that a private employer lacks the capacity to do.

One could imagine a criminal case if, for example, a state's authorized militia refused to accept black residents as employees solely on the basis of race, under a policy, statute, or regulation of the state. But that is a pretty far fetched possibility.

The Supreme Court of Colorado recently concluded, for purposes of its governmental immunity act which bars claims against state and local governments and their employees for intentional torts, except in cases not applicable to an employment discrimination claim, that an employment discrimination claim against a governmental employee was a claim for equitable relief, rather than a tort claim, and hence was outside the scope of the state's governmental immunity act.

Arguably, this is an outcome driven result, and there are many cases that consider employment discrimination claims to be torts in other contexts. But it is a case clearly address the somewhat formalistic issue raised in the question.

The Colorado Supreme Court announced its opinion on December 21, 2020, in a long-anticipated case involving the interplay between the Colorado Anti-Discrimination Act (CADA), section 24-34-405, C.R.S. (2020) and the Colorado Governmental Immunity Act (CGIA), section 24-10-106, C.R.S. (2020) in Elder v. Williams, 2020 CO 88. The syllabus to the court’s 4-3 opinion states:

This case principally requires the supreme court to decide whether claims against a governmental entity for compensatory relief under the Colorado Anti-Discrimination Act (“CADA”), section 24-34-405, C.R.S. (2020), are barred by operation of the Colorado Governmental Immunity Act (“CGIA”), section 24-10-106, C.R.S. (2020). The court is also asked to decide whether subsection 24-34-405(8)(g) of CADA, which allows for compensatory damages against “the state,” should be read to include political subdivisions of the state of Colorado and whether front pay is compensatory in nature, lies in tort, and is therefore barred by the CGIA. The court now concludes that (1) claims for compensatory relief under CADA are not claims for “injuries which lie in tort or could lie in tort” for purposes of the CGIA and therefore public entities are not immune from CADA claims under the CGIA; (2) “the state,” as used in subsection 24-34-405(8)(g), includes political subdivisions of the state and thus political subdivisions are not immune from claims for compensatory damages based on intentional unfair or discriminatory employment practices; and (3) front pay is equitable and not compensatory in nature under CADA, and age discrimination and retaliation claims seeking front pay do not lie and could not lie in tort for CGIA purposes.

The dissent argued that the damages remedies afforded by CADA are remedies that “lie in tort or could lie in tort,” bringing CADA claims within the protective orbit of the CGIA. The General Assembly could, of course, have foreseen this potential issue when it enacted CADA, but remained silent about whether CGIA would apply to CADA claims.

The fact that a different ruling would have rendered a state statute barring employment discrimination by governmental agencies enacted after the governmental immunity act, no doubt influenced the court to reach this somewhat strained interpretation.

This doesn't necessarily imply that a different classification might not be applied for a different purpose, e.g. the application of the pre-judgment interest statute, or statute of limitations classification. American courts frequently employ the same legal term in an inconsistent manner in different contexts. Legal terms in U.S. law do not mean the same thing in all circumstances.

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