Picture this: you're at a job interview for your dream position. Everything is going swimmingly until the HR manager smilingly asks you what year you graduated.
You tell her. Her smile becomes fixed; her eyes get glassy. Within minutes she's cut your interview short and practically shoes you out of 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?
When HR Professionals Seem Anything But
Determining whether or not you have been discriminated against whilst applying for a job is a tricky subject.
Since the Civil Rights Movement of the 1960's, federal and state governments have put many new laws into place that prevent employers from discriminating against job applicants based on personal attributes or facts unrelated to their ability to perform their job duties, such as:
- Gender identity
- Age (for workers aged 40+)
- Pregnancy (or future pregnancy plans)
- National origin
- Disability (physical or mental, including HIV status)
- Military service or affiliation
- Bankruptcy or bad debts
- Genetic information (such as pre-existing conditions or a family history of cancer)
- Citizenship status (for citizens, permanent residents, temporary residents, refugees, and asylees)
If you feel that a company has been racist, sexist or otherwise discriminatory towards you, you should seek professional legal advice.
Here are the top 10 most frequently asked questions regarding what companies legally can and can't ask you during the process of applying for a job.
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.
Simply not being hired is not proof of being discriminated against, because the job may have received 250 applications for only one position. If, however, the employer accidentally copied you an internal email chain where someone at the company typed, "Let's not hire Mrs. X, she's too old," then, you have a case.
If all you have to present in court is your personal opinion that you were overlooked because of your seniority, it's your word against theirs in proving it.
If you have been asked your age upfront on the application form, rather than trying to hide your age by leaving the box blank, you might want to think long and hard about applying to work at such a company in the first place. A company that discriminates against older workers (assuming this is their intention) may have outdated values, lower pay or a bias towards younger workers that may make working there an uncomfortable experience.
If asked your age outright in an interview, the best thing to do is deflect the question with the polite response, "My age will not be an issue in the performance of my job."
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. This is to protect minors by limiting the type of work they do and also the number of hours. The younger the worker, the more restrictions. For instance, a minor under the age of 15 must not work in a hazardous job such as construction, and minors under 16 must not work during school hours.
For Employers: Here's a great resource for questions you can and can't ask during a job interview.
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.
In the movie and modelling industries, including a recent photograph is a standard part of the job application, although it is a gray area legally. That's not to say the company is allowed to reject your application based solely on that fact that you are a little older or plainer than the average applicant. Once again though, if you try to sue them for age, sex or racial discrimination after your application is rejected, good luck trying to prove your case.
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.
In most cases though, if a photograph is required for identification purposes, it should be taken by the employer after the job offer has been made. It should not be taken at the interview itself with no prior warning, unless a job offer accompanies it.
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.
A company can ask at interview whether your spouse works for their company. They may not ask his or her name.
A tricky part of the application process is asking for the prospective employee's maiden name, so as to verify previous personnel records and identity. Such a request may inadvertently reveal the applicant's marital status. For most jobs and positions this information should not be needed, with the exception of law enforcement and government work which require security clearance and absolute proof of identity.
One question a company can legally ask is, "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 on starting 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.
Most of the time, they just want to know whether or not you'll stick around as an employee. They may also ask what hours you are able to work, or whether you have any commitments outside of work that many interfere with specific job requirements.
You don't have to answer these questions if you don't want to, so if you feel an prospective employer is being overly nosy, gently steer the conversation to safer ground by changing the subject or asking the hiring manager about the company's future goals, rather than your own.
6. "How much were you making at your previous job?"
It is well within your potential employer's rights to ask this question. Their intention is usually to get a benchmark of your previous earnings, so they can figure out whether or not they can afford you.
It is legal for an employer to ask you for a copy of your W2 or a recent pay stub to verify your salary, although this is very rarely done and should (very rightfully) be considered an invasion of privacy. A company that would ask for proof of a fact you have already told them would most likely be one that you should avoid working for like the plague.
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 'wriggle 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.
Want a higher job offer? Learn 4 Ways to Negotiate a Better Compensation Agreement.
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.
If the question does come up during the interview stage, employers should not ask you directly, "Are you a US Citizen?" 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?" All of these questions would confirm your legality to work in America.
This is another grey area where companies often step over the line due to lack of training in Equal Opportunities. Immigration law is so complex that even large companies can be entirely clueless about standard procedure you may take for granted, such as visa sponsorship. It is entirely up to you to update yourself on current law relating to your specific situation, and to inform the company of everything it needs to know before hiring you.
Ignorance of the law is no protection from it, either for you or your prospective employer.
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.
Companies may choose to reject you as a candidate upon discovering that you require sponsorship (which is illegal but still happens anyway), so give the company a chance to meet you first and get to know you as a potential candidate before making your request.
So yes - it is perfectly legal for job application forms to include this question as a matter of course. Recruiting firms in particular often include this question upfront, as a recruiter may invest large amounts of personal time and effort in each applicant they represent, which may be wasted if the applicant does not have the right to work in America. So for recruiters and agencies, make sure you explain this fact in your cover letter or initial interview.
Refusing to answer this question by not checking the box may automatically disqualify you from being considered for the job, so this is a tricky subject to tackle for both the employer and the applicant. In such a case, writing "See cover letter" by the box and then explaining your personal circumstances in your cover letter may be the best way forward (for instance, you just got married and are waiting for your work authorization document to arrive in the mail).
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.
When deciding whether or not to submit to a drug test, it is wise to familiarize yourself with your local state laws with regards to drug testing in the workplace. For instance, some states offer significant discounts on their workers insurance premiums if they drug-test their employees.
The exception is any job involving transportation and the protection of the safety of others: for instance, the Federal Highway Administration, the Federal Aviation Administration, and the U.S. Coast Guard. Mass transit operators, trucking industry drivers, aviation pilots and workers, and those who contract with the Department of Defense or NASA are usually drug-tested as standard operating procedure, both before hire and after hire.
Tests for illegal drug use are not considered medical tests, according to federal Equal Employment opportunity laws (EEO), and therefore not subject to the same restrictions and protections. In addition, any person currently using illegal drugs is not protected under any law, either federal or civil.
However, it is perfectly legal (although potentially awkward) for an employer to ask you outright, "Are you currently using any illegal drugs?" or "What illegal drugs have you used in the last six months?" Doing so is well within their rights at any stage of the interview process, just as it is well within your rights to decline to answer, although do so at your own risk of losing the job.
If you think you have a case: US-Based Discrimination Investigation Agencies
If you wish to file a charge for discrimination in the workplace, the below organizations would be a good place to start your research.In most cases, you should file a complaint with the correct organization prior to filing a lawsuit in court. All states must adhere to the Federal Civil Rights guidelines, but some states may offer extra employment protection, for instance in matters involving sexual orientation, gender identity or political affiliation, even though many of these forms of discrimination are not yet covered in federal civil rights laws.
The Equal Employment Opportunity Commission - The EEOC investigates discrimination complaints based on an individual's race, color, national origin, religion, sex, age, disability, genetic information, and retaliation for reporting, participating in, and/or opposing a discriminatory practice.
The Office of Federal Contract Compliance Programs - OFCCP is responsible for ensuring that employers doing business with the Federal government comply with the laws and regulations requiring nondiscrimination. This mission is based on the underlying principle that employment opportunities generated by Federal dollars should be available to all Americans on an equitable and fair basis.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices - responsible for enforcing the Immigration Reform and Control Act of 1986 (IRCA), which protects US citizens and certain other individual from discrimination based on their citizenship or immigration status.
If you're 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.
At the end of the day...
Bear in mind that many cases of apparent discrimination are not deliberate. It's easy for some companies to let themselves get behind with the times when it comes to Equal Opportunities and the finer points of fair hiring practices and immigration law. Your interviewer may simply be ignorant of the law, although once again, that is no defense against it. Asking an illegal question doesn't mean the company has committed a crime or had intent to discriminate.
When it comes down to it, if you receive a job offer from a company who has apparently discriminated against you during the hiring process, the ball is in your court when it comes to deciding whether or not to work for such a company. If you decide you still want the job, do your research, talk to existing staff and check out online reviews of the company in question before making a decision. The question may have been asked out of ignorance by an improperly trained staff member, rather than being the view of the whole organization.
NOTE: The advice, opinions and information presented and linked to in this article are intended for guidance purposes only. This is not legal advice and should not replace a consultation with a reputable lawyer, an attorney who handles labor issues or immigration attorney. Employment law is complex and while I have made every attempt to provide accurate and up-to-date information, CareerBliss assumes no personal or financial responsibility or accountability for inaccurate or outdated/ incomplete advice represented here.
Natasha Rhodes is a careers expert and writer for CareerBliss, an online career community dedicated to helping people find happiness in the workplace. Check out CareerBliss for millions of job listings, company reviews, and salary information.