Employment law question

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:"Also, I've been asked on a whole separate interview how I planned to pick up my kids from daycare if I had to work a long day."

That's illegal.

But hard to respond to.

I would say "I'm surprised that you're asking me that, but I'll simply say that I have coverage for my children like any professional does."

Asking a question like that in not illegal, it is stupid. It could be used as evidence of bias agaInst an applicant due to family obligation, but the question itself is not actionable.

I disagree. Unless they ask every candidate, it is per se actionable.

Because Title VII makes it illegal to discriminate against applicants -- in addition to employees -- regardless of whether the applicant is hired or an "employment action" is taken. Thus, I repeat, the question is per se actionable.

Actionable as what or under what statute? No discrimination has occurred when no employment action has been taken. Unless there is some specific statute in your jurisdiction thatprohibts asking the question, it is not actionable. Moreover, even if it were, what damage claim should anyone possibly have?

[Anonymous]

Anonymous wrote:

Anonymous wrote:^^ Um, I think what they're getting at is the lack of getting the job is the adverse employment action.

No they weren't. The poster I was responding to said that asking the question was "per se actionable." The discussion was about whether it was illegal to ask the question about daycare, which did not even occur in the interview that resulted in not getting a job.

Somebody appears to believe that it is illegal for an employer to ask a question about daycare pick-up. It is not.

This person is correct. It is not actionable. There are things that are per se actionable (asking about a disability, for example). Asking the question referred to is not.

That said, it was an unbelievably stupid thing to say that could be used against them if the OP had decided that she wanted to sue. I suspect that they would have some pressure to settle that case (even minimally). Very hard to explain that sort of statement away in front of a jury.

[Anonymous]

Actionable as what or under what statute? No discrimination has occurred when no employment action has been taken. Unless there is some specific statute in your jurisdiction thatprohibts asking the question, it is not actionable. Moreover, even if it were, what damage claim should anyone possibly have?


Because Title VII makes it illegal to discriminate against applicants -- in addition to employees -- regardless of whether the applicant is hired or an "employment action" is taken. Thus, I repeat, the question is per se actionable.

And it's not a matter of proving damages. The court could require a posting that the employer will not ask such questions of applicants again.

[Anonymous]

Anonymous wrote:Actionable as what or under what statute? No discrimination has occurred when no employment action has been taken. Unless there is some specific statute in your jurisdiction thatprohibts asking the question, it is not actionable. Moreover, even if it were, what damage claim should anyone possibly have?


Because Title VII makes it illegal to discriminate against applicants -- in addition to employees -- regardless of whether the applicant is hired or an "employment action" is taken. Thus, I repeat, the question is per se actionable.

And it's not a matter of proving damages. The court could require a posting that the employer will not ask such questions of applicants again.

. Show me a court decision and I will believe you. Asking that question is not a discriminatory act and there is not regulatory prohibition against asking such a question. The ADA has avregulatory prohibition against asking about an applicant's disability, Title VIi does not.

[Anonymous]

I'm not going to do case law research for you. But you might want to look at the following:

http://www.eeoc.gov/policy/docs/testers.html

[Anonymous]

I can see why there is confusion on this issue. There are so many articles that say, without any citation, that such questions are illegal. But even the EEOC doesn't have guidance that says such questions are illegal. It is illegal to make a discriminatory hiring decision, and it is possible that the question could be used as evidence of discriminatory intent. But if OP got the job, neither she or the EEOC would be able to bring a claim based on the question being asked. What is crazy is that the interviewer could have simply asked the following question and gotten the same information without any problem: This job will periodically require you to stay late with little or no notice, will that be a problem for you? If she says yes, she is not a good fit for the position, If she says no, she is a good fit and the employer shouldn't
care what she needs to do to be able to stay late as long as she can do it.

[Anonymous]

Anonymous wrote:I'm not going to do case law research for you. But you might want to look at the following:

http://www.eeoc.gov/policy/docs/testers.html

The EEOC's position on the standing of testers to bring claims when they are not selected for a job that they did not intend to accept is not relevant to this discussion. I do employee side work and I would love to see court decisions in which the court held that just asking such a question is an action able claim. I'm not aware of any decision to this effect or any EEOC guidance on the issue either. If you know of something, please share.

[Anonymous]

NP here.

Hate to tell you 18:40, but you're flat wrong. I'm an employment lawyer with 25 years experience, and the PP is indeed correct when she/he says that the question itself is not illegal.

I agree with the others, it is stupid. It could also be used as potential evidence of discrimination. But it is not, in and of itself, illegal.

[Anonymous]

Anonymous wrote:NP here.

Hate to tell you 18:40, but you're flat wrong. I'm an employment lawyer with 25 years experience, and the PP is indeed correct when she/he says that the question itself is not illegal.

I agree with the others, it is stupid. It could also be used as potential evidence of discrimination. But it is not, in and of itself, illegal.

I blame all the internet articles on "illegal" interview questions for this confusion. It drives me crazy. My second pet pieve is people thinking a hostile environment can be establishes be having a mean boss without having to provide a discriminatory animus. I get so many people coming into my office to complaint about a hostile environment only to learn that the boss isn't a racist, he's just an a-hole.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:^^ Um, I think what they're getting at is the lack of getting the job is the adverse employment action.

No they weren't. The poster I was responding to said that asking the question was "per se actionable." The discussion was about whether it was illegal to ask the question about daycare, which did not even occur in the interview that resulted in not getting a job.

Somebody appears to believe that it is illegal for an employer to ask a question about daycare pick-up. It is not.

This person is correct. It is not actionable. There are things that are per se actionable (asking about a disability, for example). Asking the question referred to is not.

That said, it was an unbelievably stupid thing to say that could be used against them if the OP had decided that she wanted to sue. I suspect that they would have some pressure to settle that case (even minimally). Very hard to explain that sort of statement away in front of a jury.

Almost makes me wonder if making a living off of settling with companies for tripping up in job interviews would be a viable choice.

[Anonymous]

Anonymous wrote:NP here.

Hate to tell you 18:40, but you're flat wrong. I'm an employment lawyer with 25 years experience, and the PP is indeed correct when she/he says that the question itself is not illegal.

I agree with the others, it is stupid. It could also be used as potential evidence of discrimination. But it is not, in and of itself, illegal.

NP - I'm not a lawyer, so I totally defer to your statement and will take your word that it is legal. From what I learned in a management class in grad school though, these days, most employers are actually usually in the right (i.e. they are allowed to fire you, not hire you, etc.) but because so many employees or potential employees sue they want to avoid having to settle out of court even when they are fully in the right. So yes, this is legal, but that may be a moot point if it is perceived discrimation, like you said.

I will never forget a co-worker of mine who was absolutely awful. She was a young woman in her 20s and would go out and get plastered after work, then come to work and literally fall asleep in meetings. She failed to complete projects, she watched online TV at work most of the day etc., and she was put on probation. At the end of the probation period she had not improved. They were so afraid to fire her, they basically talked her into leaving. They allowed her to be vetted (even though she was a few months away from the minimum time), they gave her three months pay and paid out her vacation, and I believe they wrote her a nice recommendation. All to avoid a lawsuit I presume.