You answer. Her smile becomes fixed; her eyes get glassy. Within minutes she’s cut your interview short and practically shoves you out the door.
All the way home you go over and over the interview in your mind. Days pass with no callback. You became convinced that you just lost the job because of your age, and that you should never have answered the question – or better still – that the company should have never asked you that in the first place.
Was it legal for the company to prompt you to reveal your age? And if not, do you have grounds to sue for discrimination?
Determining whether or not you have been discriminated against while applying for a job is a tricky subject. Here are some frequently asked questions regarding what companies legally can – and can’t – ask you during the process of applying for a job or internship.
1. “Is it legal for an employer to ask for my date of birth, age, or year of graduation?”
According to the U.S. Equal Employment Opportunity Commission, it is NOT illegal for an employer to ask any of those questions, but it IS illegal for them to discriminate against you and not offer you the job purely because of your age.
The Age Discrimination in Employment Act of 1967 (ADEA) protects workers who are 40 or older from being discriminated against by employers in favor of younger employees. However, in order to prove that the company discriminated against you specifically after finding out your real age, you must have concrete evidence.
2. “Why does the job application form ask if I’m over the age of 18?”
One question all employers are legally allowed to ask upfront is, “are you over the age of 18?” This is a question that in some cases they must ask, in order to determine if you are legally eligible to perform a job as an adult. There is no federal legal protection in place to prevent workers younger than 40 from age discrimination in the workplace, so you wouldn’t have an age discrimination claim here if asked this question.
If you are particularly young looking, it is also perfectly acceptable for a company to ask you at the interview if you can provide proof of age if offered the position. It is not legal for a company to ask you to bring your birth certificate to the interview before you have a job offer, or to request that you attach a photocopy to the application form.
If you are under the age of 18, US law considers you a minor. Child labor is regulated by the Federal Fair Labor Standards Act (FLSA) and by individual state labor laws.
3. “A job application form is asking me to provide a recent picture. Why do they need this?”
It is usually considered illegal to ask a job applicant to send in a photo of themselves before the interview. For public-facing positions, however, a company may feel that the physical appearance of an employee may directly impact their financial bottom line, and request a photograph in advance of the interview.
Jobs where physical appearance may be important to the hiring company include roles such as: barman, cosmetics salesperson, perfume counter rep, actor, model, news reporter or air hostess.
A recent addition to US law is the Bona Fine Occupational Qualifications (BFOQ) provision. In this case, employees are allowed to make requests of applicants that would otherwise be labeled discriminatory, if they can prove that the attribute they are seeking is fundamental to the offered job function. For instance, a men’s underwear manufacturer can lawfully advertise for male models of a certain height and weight.
4. “Are you married or single?”
It’s not advisable for any employer to ask you this question at the interview stage. After your hire, then the company may be permitted to ask you this question for tax and insurance purposes, including the number of children you have and their ages.
A morally ambiguous area may be in a case where a prospective employee is the spouse of an existing employee, particularly for highly paid management or executive positions. Such a hire may be regarded as favoritism and can breed ill will within an organisation, although it is not by any means illegal.
One question a company can legally ask: “Have you ever worked for this organization under a different name?” or “have you ever changed your name/ worked under an assumed name or nickname?”
5. “At my interview, I was asked if I was planning to start a family in future. I don’t see why that’s any of their business.”
The Pregnancy Discrimination Act of 1978 says that an employer can’t refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients or customers against her condition or planned future condition.
If you’re not pregnant, however, an employer still might ask that question. They may be concerned that by starting a family soon after hire, you will need to take time off work, claim expensive benefits, or have medical issues that will require you to take extra time off work before or after birth.
It is perfectly lawful for a company to attempt to find out about your future plans – family-related or otherwise – by asking non-specific questions about your life goals, such as whether or not you’d be open to travelling on the job or even if you’d consider placement abroad. Be careful how you answer these, and don’t volunteer personal or medical details that may be used against you in the hiring decision.
6. “How much were you making at your previous job?”
Most of the time, the company will have a set wage in mind for their new hire, but some companies may allow their hiring manager a little ‘wiggle room’ in order to get the perfect candidate for the position. This is usually the reason behind this common interview question.
If you get offended and upset, or decline to answer, you’re depriving the hiring manager of the chance to offer you a salary match or increase. Your resultant offer may be significantly lower than your current wage, resulting in a lost job opportunity should you then decline their offer.
Regardless of whether you are offered a job or not, it is never legal for a hiring company to inquire into your personal financial background, for instance by asking to see your credit score or recent bank statements. The only exception – within reason – would be if you were seeking an executive or managerial job in a financial institution such as a bank, city trading or stockbroking firm, where excellent money-handling skills are integral to the job being offered.
7. “Can a potential employer ask me upfront if I’m a US citizen?”
Here’s a complex one. It is prohibited in the US to discriminate against certain applicant because of their race or country of origin, according to The Immigration Reform and Control Act of 1986 (IRCA). This includes asking interview questions such as when an applicant moved to the US, their country of origin or fluency in English, or whether or not they’re a US citizen.
However, companies can get into legal trouble and be fined if they hire someone without US work authorization, whether knowingly or unknowingly. So yes; they must find out if you’re legally allowed to work in the US before you start work for them, and are legally allowed to do so. However, the sake of avoiding claims of discrimination, they should wait until after extending a job offer to you before requiring you to provide your legal documents for verification purposes.
It is illegal to ask for proof of work authorization at the application or interview stage. Instead, they should ask, “Do you have a visa or permit to work in the united states?” or “If hired, do you have the right to remain in the US?” or “Is your spouse a citizen?”
8. “Do I have to check the box on a job application form that states I am authorized to work in the US?”
If you’re an non-US citizen without a Green Card and you have work authorization, you should check the box. If you don’t, you shouldn’t be applying for the job unless you have a USCIS-approved work visa, visa approval letter (form I-797, Notice of Action), employment authorization form or similar documentation in the mail, which is due to arrive at least a day before you start work.
A third option: companies may sponsor you for a visa such as the H-1B visa (or similar) if you do not have pre-existing work authorization. But be aware that by asking for visa sponsorship upfront, you are asking your potential employer to invest a significant amount of time and money in you in order to obtain the visa, which is no easy process.
Immigration law can be complex and every case is different, so consult a qualified Immigration Attorney if you need help with visas or US work authorization. Immigration.com is a good resource for the basics on US immigration. The governing body for US visas is the United States Citizenship and Immigration Services (USCIS).
9. “My employer wants me to undergo a physical examination before I start work. Do I have to comply with this?”
To ensure you are physically capable of doing a job, an employer may ask you to take a health exam, including presenting your medical history. This is only legal if the following conditions are met:
- You’ve already been offered the job on the condition that you pass the health exam.
- The job involves work that is physically demanding, for instance a construction worker or prison guard.
- The job requires a certain level of mental fitness necessitating mental health screening, for example a law enforcement agency.
- The exam ONLY tests for job-related abilities.
- The exam must be taken and passed by all job applicants conditionally offered that position.
- The info obtained is treated as a confidential medical record, and stored in a secure location with limited access.
10. “The job advert states that I must pass a drug test in order to be offered the job. Can I refuse the test?”
With regards to drug tests, the United States Department of labor says that most US employees are not required to pass drug tests to gain employment. Many states have statutes that prohibit such tests. That much said, private employers do have the right to test their employees (and potential employees) for a number of substances. In this case, the above rules for general physical exam tests should be followed to avoid discrimination and related lawsuits.
Feel you may have been discriminated against and not sure where to begin? The EEOC has an Online Assessment System to help you to decide if you should file a complaint, and with which agency.
You can also contact your local EEOC office for more information.
For this post, YouTern thanks our friends at Careerbliss!