‘Prohibited Practices’ in the USA as you interview

My title is deliberately ambiguous, since I mean “as you interview” to refer to people on both sides of the interview table, especially in light of the upcoming Eastern APA meeting.  Interviewers, applicants, please see the excerpt below and follow the link to the source at EEOC to understand why we say, in short, some questions are illegal.  Not all the questions are in and of themselves prohibited, but as you’ll see, most are irrelevant to that which is mandated, namely, only considering information relevant to one’s qualifications for the job.   On the site you’ll also find individual links about specific concerns such as marital status. (If you’re a blogger, spread this word, please.)

Terms & Conditions Of Employment

The law makes it illegal for an employer to make any employment decision because of a person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. That means an employer may not discriminate when it comes to such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment – however small.

Pre-Employment Inquiries (General)

As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.

Employers are explicitly prohibited from making pre-employment inquiries about disability.

Although state and federal equal opportunity laws do not clearly forbid employers from making pre-employment inquiries that relate to, or disproportionately screen out members based on race, color, sex, national origin, religion, or age, such inquiries may be used as evidence of an employer’s intent to discriminate unless the questions asked can be justified by some business purpose.

Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant’s race, sex, national origin, disability status, age, religion, color or ancestry if answered, should generally be avoided.

17 thoughts on “‘Prohibited Practices’ in the USA as you interview

  1. It’s very good and important to circulate these, but it might be worth (a) noting that these particular laws apply to United States employers, and (b) linking to other laws that might apply to readers of the blog. (That is, don’t assume ‘you’ is an American!)

    The relevant statement for Victoria, for instance, is here.

    I do have a somewhat related technical question. Which jurisdiction applies when a non-American university interviews a non-American candidate inside the United States? (I’ve been in several such interviews.) Maybe these US EEOC laws apply then; does anyone here know?

  2. Oh, how funny, Brian, I edited my post before I realized your comment was stuck in spam. Point taken in advance, retroactively! (In my defense, I posted that when it was still on my mind that I’d been talking to a candidate for a U.S. job.)
    Excellent question, to which I hope others know the answer.

  3. The nationality of the candidate doesn’t matter; the non-US employer is going to be governed in its hiring processes by home-jurisdiction law, regardless of where the interview is happening. The “illegal questions” aren’t *crimes,* which are normally governed by where the event happens; they’re evidence of employment discrimination, and the employment happens in (and is governed by) the home jurisdiction.

    As I recall APA has an antidiscrimination policy governing interviewing departments, and it could imaginably decide that the EEOC interpretation of US law provided the proper specification of its own policy, and ban departments for activities that would be illegal were they from US universities but are not illegal in the home jurisdiction.

  4. Well and good, thanks, Jacob T. Levy. I stress for readers’ clarity, though, in light of the fact that in comment #4 Jacob’s talking about the non-U.S. employers question, that at least when it comes to employers in the U.S., it really IS illegal to discriminate, and the questions we tend to concern ourselves with are treated as evidence in accusations of illegal discrimination:

    “Under the laws enforced by EEOC, it is illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

    The law forbids discrimination in every aspect of employment.”

  5. These statements are good but they warn not to use information one usually gets pretty easily, like sex, race, relative age, etc. The law covers more than that, though. Each category has its own list of forbidden inquiries. Hiring committees I’ve been on (Pitt, UNC, U Mass Boston) all warned against personal questions of any sort, particularly about marital status, family situation, etc. Keeping the focus on professional matters keeps it safe.

  6. Is anyone able to offer further clarification about the status of religion-related questions in the U.S.? The APA makes an exception for institutions with a religious mission (so, for example, Christian colleges are permitted to post ads requesting that prospective candidates be Christian)–and so my assumption was that there must be some kind of legal caveat in the U.S. for this sort of case. Having been repeatedly questioned as to my particular theological commitments–not just my general religious affiliation–during an interview, I am very curious about this.

  7. Actually, I found the relevant EEOC clause:

    “Pre-Employment Inquiries and Religious Affiliation or Beliefs
    Questions about an applicant’s religious affiliation or beliefs (unless the religion is a bona fide occupational qualification (BFOQ)), are generally viewed as non job-related and problematic under federal law.

    Religious corporations, associations, educational institutions, or societies are exempt from the federal laws that EEOC enforces when it comes to the employment of individuals based on their particular religion. In other words, an employer whose purpose and character is primarily religious is permitted to lean towards hiring persons of the same religion. This exception relieves religious organizations only from the ban on employment discrimination based on religion. It does not exempt such organizations from employing individuals due to their race, gender, national origin, disability, color, and/or age. Other employers should avoid questions about an applicant’s religious affiliation, such as place of worship, days of worship, and religious holidays and should not ask for references from religious leaders, e.g., minister, rabbi, priest, imam, or pastor.”

    So, religious institutions can (and do) claim that religion is a BFOQ, and then ask all the questions they want about it.

  8. Yes, to what Lynne says; as noted in the post, the above is just an excerpt and the law covers more than that, including links to specific topics such as marital status (also linked to above).

  9. I have heard more than one philosopher (non-religious, at non-religious schools) claim that religion is job-relevant in philosophy because religious belief reflects on philosophical judgment and acumen. I know of several instances (some firsthand) where people–again, at non-religiously affiliated schools–asked about religious views in interview situations, and where religion has been cited as a reason against hiring. It would be good if this were more widely acknowledged.

  10. Actually unless a relevant treaty trumps, a non usa employer is still bound by the eeoc when acting in the usa

    (see http://www.eeoc.gov/facts/multi-employees.html Working for Non-U.S. Employers in the U.S

    “The only exception to the rule that employees working in the U.S. are covered by federal EEO laws occurs when the employer is not a U.S. employer and is subject to a treaty or other binding international agreement that permits the company to prefer its own nationals for certain positions.

    Example: ABC Communications is an Egyptian Company doing business in the U.S. Under a “friendship, commerce and navigation treaty” (“FCN”) between the U.S. and Egypt, Egyptian companies operating in the U.S. are authorized to hire Egyptian citizens for executive positions. Thomas, a U.S. citizen, alleges that he was subjected to national origin discrimination when he was denied a position as Vice President of Legislative Affairs in favor of Menkure, who is an Egyptian citizen. ABC Communications admits that it favored Menkure because he is an Egyptian citizen and can successfully assert the FCN treaty as a defense.

    However, if Menkure were not an Egyptian citizen but a citizen of the U.S. or a third country, ABC would not have the treaty as a defense because the treaty authorizes a preference only for Egyptian citizens.”)

  11. I am mystified by the qualification that age discrimination is only verboten if the candidate is 40 or over. WTFF? So discriminating against someone because you think they are too young is just fine? Or if you think they are too old but not 40? (One can EASILY imagine, say, a 37-year-old new PhD being discriminated against on the basis of not being young and shiny enough, and I feel like I faced concrete pay discrimination in virtue of my (sadly long-lost) exceptionally young age when I was starting out.)

    Also what if you think someone is over 40 and discriminate against them but they are actually younger?

    Anyhow adding any specific age to the regs just seems to me multiply f*cked.

  12. “Actually unless a relevant treaty trumps, a non usa employer is still bound by the eeoc when acting in the usa”
    “The only exception to the rule that employees -working in the U.S.- are covered…

    The bit I emphasize in the regs above mean that this exception won’t really help many people looking for academic jobs. This rule would apply, perhaps (depending on the other relevant law) if a university from a country outside the US opened up a branch in the US, but not to a university from outside the US that merely interviews people inside the US, but where the employment, and employment decisions, will be abroad. So, US EEOC legislation won’t help you at all, even if you interview in the US, if you take a job in Singapore, Canada, Turkey, etc. (Canada probably won’t be a problem!) The perhaps more interesting question relates to “branch” campuses of US universities abroad- Yale in Singapore, NYU in Abu Dhabi, etc. There’s a lot of complex and hard to summarize legislation and case law on this, but the most basic idea is that at least some US non-discrimination laws apply, though the exact relationship of the branch to the parent also matters a lot.

    Rebecca- I don’t know about the specifics of the age determination rules, but often when there are such “bright lines” like that, they are in place to make enforcement easier. All of these cases are really hard to prove, especially in the academic world, where there are always lots of good reasons to reject people and take another person. Sometimes the “bright lines” help serve as presumptions that make some enforcement easier, even if they are far from perfect.

  13. Matt, that’s probably right, but when I was younger I was working in a different field, and a promotion opened up and I was told pretty explicitly that I was going to get the job until the hiring manager found out how young I was, and then decided to go with someone more “mature” (nevermind that there were no concerns whatsoever about my maturity until my age came to be known).

  14. Matt, fair enough, but I don’t see how this ‘bright line’ helps in the slightest. You still have to decide whether a given case is age discrimination, and the fact that we are only going to look into cases involving people over 40 doesn’t give us any usable criteria, however imperfect, for how to settle those cases. I don’t see why we would expect the over-40 cases to be any easier or harder to resolve than others, either.

  15. Yes, what Matt said about non-US employers. An interviewee at the APA is not an employee of a non-US employer “working in the U.S.,” and US labor law (antidiscrimination law, minimum wage law, OSHA, the duty to pay US Social Security taxes) don’t get exported to the non-US employer whose employees work outside the US just because an interview took place inside the U.S.

  16. I see what Matt and Jacob are saying, however I thought the initial information given was concerning non-US employers hiring an employee within the US to work in the US not just concerning whether or not a non-US employer was performing an interview for a job meant to be performed outside of the country, or I would not have given the above information. Excuse my misunderstanding.

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