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)?

  • 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. – zhantongz May 15 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 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 at 0:28

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 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. – zhantongz May 15 at 13:06

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 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 at 6:21
  • You can have a statutory tort. – D M May 16 at 15:34

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