Illegal Interview Questions and Female Applicants

Interviewing for a new job can be a nerve-wracking experience. It can be worse for women who face discriminatory and unlawful questioning. While employers have a legitimate interest in assessing a candidate's qualifications and fit for a role, certain inquiries cross legal boundaries. Federal and state laws prohibit employers from asking questions that discriminate based on gender or other protected characteristics.

Illegal questions may be about a female applicant's family status, marital status, and child-rearing plans. Employers often ask these questions due to the harmful and antiquated assumption that female employees are not as committed to their work or will be absent more and less productive than male workers.

When these questions are part of hiring decisions, employers may have violated laws aimed at preventing employment discrimination. If this is the case, employees can bring lawsuits. 

This article discusses anti-discrimination laws relating to female applicants, illegal interview questions to avoid, and tips for female applicants hoping for a job offer.

Anti-Discrimination Laws Relating to Female Applicants

Federal and state laws protect job applicants from many forms of discrimination, including bias based on gender and sex.

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 is a wide-ranging federal law that prohibits employment discrimination against those who belong to legally protected classes. These categories include:

• Sex (including pregnancy, gender identity, and sexual orientation)
• National origin
• Race/Ethnicity
• Color
• Religious affiliation
• Age (40+)
• Disability

Employers can't ask questions related to these characteristics during the hiring process.

However, employers can consider bona fide occupational qualifications (BFOQ) that are valid job requirements. An employer may discriminate if a BFOQ exists. For example, a BFOQ might exist if an employer specifies female job applicants because the organization is looking for someone to model specific sizes of women's clothing.

An employer should ask whether the organization can demonstrate a job-related necessity for asking the question. If so, this means the trait is a valid and necessary part of the job description.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) prohibits discrimination against employees and applicants based on disabilities, including those related to pregnancy.

Pregnancy itself is not considered a disability under the ADA. The U.S. Equal Employment Opportunity Commission (EEOC) has said that, although temporary, pregnancy-related impairments may be disabilities. 

As a result, pregnancy-related conditions, such as severe morning sickness and gestational diabetes, may be ADA disabilities. In such instances, employers will have to provide pregnant workers with reasonable accommodations for their pregnancy-related disabilities.

For example, in 2021, the EEOC sued a New Jersey healthcare services provider because it refused to delay a pregnant woman's job start date. The EEOC said such a delay is a reasonable accommodation.

Pregnancy Discrimination Act/Pregnant Workers Fairness Act

The Pregnancy Discrimination Act makes it illegal to discriminate against a pregnant applicant. The Pregnant Workers Fairness Act requires employers to accommodate pregnant job applicants during the hiring process.

State and Local Laws

State laws and local laws also prohibit employer bias based on sex and may include stronger protections than federal laws. The laws forbid pregnancy discrimination and, in some instances, require that employers take a step further and accommodate pregnant workers. Many of these laws protect workers in all aspects of employment, including hiring.

State law may give extra protection for traits such as marital status (married or unmarried) and family status (having children).

Salary history bans are in operation in many cities and states. Salary history bans are aimed at eliminating the wage gap between men and women. According to the National Women's Law Center, women in the U.S. who work full time, year-round are paid 84 cents for every dollar paid to men.

The bans mean that employers in those areas are violating the law if they ask you about your current or past wages. Some salary history bans go even further and forbid employers from even relying on your past wages.

An employer asking about your pay expectations for the position does not fall under a salary history ban. It's also not illegal for a potential employer to ask if they can run a background check on you, but you have the right to refuse.

Caregiver Discrimination

Employers who violate these laws are engaging in a form of Family Responsibilities Discrimination (FRD). This is also known as caregiver discrimination. This is discrimination against applicants and employees who have family caregiving responsibilities outside of their employment.

Illegal Interview Questions To Avoid

Anyone, regardless of gender, can be asked illegal interview questions. It's more common for these types of questions to be asked of women instead of men.

Examples of illegal job interview questions that may discriminate include:

• Do you have any children? If so, how many and what are their ages?
• Are you single, married, divorced, or engaged?
• What kind of childcare arrangements do you have in place?
• Are you likely to take time off under the Family and Medical Leave Act?
• Are you currently taking any form of birth control or fertility treatment?
• What are your plans if you get pregnant?
• Does your spouse work? If so, what does your spouse do for a living?
• Should we refer to you as Miss or Mrs.?

Such inquiries may be made for insurance or other legitimate business purposes after acceptance of an employment offer.

Appropriate Interview Questions To Ask

It's legal to ask questions assessing an applicant's job experience, qualifications, and motivation. Employers must avoid interview questions that single out female applicants and are not also asked of male applicants.

Below are examples of what may be asked during a job interview, so long as these questions are asked of all applicants:

• Do you have any restrictions that would prevent you from traveling?
• Do you have any commitments that will conflict with your work schedule?
• Do you anticipate any absences from work on a regular basis?

If these questions are only asked of one gender, the interviewer is violating the law.

Tips for Female Job Applicants

Female job applicants should be careful not to provide personal information during the interview process that's not relevant to the job. Often an interviewee may offer information during the pre-interview phase to "break the ice"  that could not be legally requested by the interviewer. 

To further your chances of success during the interview process, it's best to leave personal information out of all discussions, including follow-up discussions by phone or email.

If faced with an illegal interview question, you can:

• Answer the question and move on
• Ask the relevance of the question to the position
• Answer the intent of the question by addressing the employer's underlying concern
• Explain that you are not comfortable answering that type of question

Try to remember exactly what you were asked and how in case there are later legal ramifications.

Get a Legal Case Review

If you believe you've experienced discrimination during a job interview, which led to a negative hiring or firing decision, you may have legal questions. An attorney can review the specifics of your situation and provide legal advice.

Contact a local attorney for a legal case review to discuss your concerns.