What Employers Legally Can and Can't Ask You During a Job Interview and Salary Negotiation

by Catharine Morisset, Avvo.com

Can and Can't Ask

"Where are you from?" It's an easy conversation starter and suitable in most settings…except a job interview.
 
So too, are other common social inquiries like, "Are you married," "When did you graduate," or "Have I seen you at my church?" A prospective employer who asks you these questions should send up a red flag. It may signal a lack of understanding of workplace anti-discrimination laws, or worse, no concept of workplace diversity.
 
The above examples can lead to information about a candidate's national origin, marital status, sexual orientation, age, or religion. It's illegal to ask any questions that may illicit information about any status protected by federal, state, or local laws. The interviewer's questions should stay focused on top-level priorities related to the job's essential duties, such as the candidate's work history as it pertains to the position, or availability for certain work shifts.

How best to handle improper questions? Politely decline to answer, or, better yet, cheerfully steer the conversation back to how you meet—or exceed—the job's qualifications.
Other inappropriate interview questions include:

  • Have you ever been arrested?
  • Is English your native language?
  • Are you a US citizen?
  • Are you planning on having children?
  • Have you ever been injured on the job?
  • How many sick days did you take last year?
  • Why were you discharged from the military?
  • Do you like to drink socially?
  • When is the last time you used illegal drugs? (But not: Do you currently use illegal drugs?)

Not always so easy

A trickier area is when candidates might need a religious or disability-related accommodation. An employer has to walk a fine line of not asking improper questions about these two protected categories, while not ignoring the obvious. The Supreme Court's 2015 decision in the Abercrombie & Fitch case, involving the interplay of its dress code policy and a job candidate who wore a hijab to an interview, shows how difficult this balancing act is.
It's up to the candidate to speak up and request a reasonable accommodation to assist in the interview and application process (though to be clear, accommodation requests related to the job itself belong in the stage between an offer being made and the start date).

Post-offer considerations

Receiving a job offer may lead to another phase—salary negotiation.  Here, an employer is less restricted than you may think. It can ask your salary history and your salary requirements (and confirm this information by asking for W2s, if they choose), although you are not legally required to give it. How you choose to answer is thus left to your negotiation strategy. If you do answer, be truthful. Providing false information at any stage of the hiring process is most certain to result in you not getting the job—and would most likely quell any would-be legal challenge even in the face of unlawful hiring practices. 

As for benefits like paid time off, do not assume you are legally entitled to them. For example, no state has passed mandatory paid vacation, so that remains a point of negotiation. However, several states and cities have passed paid sick leave laws, and some even now include pregnancy or childbirth-related disabilities within their coverage (watch for that to be specified and explained in jurisdictions like California, Connecticut, Oregon, or Seattle and San Francisco). 
Basically, if you aren't sure about something, ask. And get it in writing before you accept a job.

Taking some time to educate yourself about what you are legally entitled to receive will allow you to focus on parts of your offer that may be negotiable, while assuring yourself that your new employer places workplace legal compliance high on its list of priorities.

Catharine Morisset

About the Author
Catharine Morisset is a Seattle-based partner with Fisher & Phillips LLP, a national law firm committed to providing practical business solutions for employers' workplace legal problems with more than 300 attorneys in 31 offices nationwide. She also writes about legal issues in everyday life on the Avvo NakedLaw blog. Avvo provides free answers from lawyers, client reviews, and detailed profiles for 97 percent of all attorneys in the U.S.; follow them on Twitter and Facebook

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