How people are hired and the nature of work has changed in the past couple of years, but nearly all jobs are filled after the candidate’s interview. Whether you want to be hired or are interviewing for a transfer or promotion, you may be asked questions that shouldn’t be asked. How do you respond?

Whether you’re interviewing in person or online, your interviewer may cross lines they should avoid. Some managers don’t like to interview and are bad at it. They may ask an illegal question because they struggle with small talk. On the other end of the spectrum, the person may genuinely if improperly want to find out about your protected status or if you plan to take protected actions (like asking for time off for the birth of a child). They may try to set you up for rejection.

How are Candidates Protected?

Under the New Jersey Law Against Discrimination (NJLAD) and similar federal laws, it’s illegal to intentionally take adverse employment actions (like not hiring, transferring, or promoting you) because of your protected status. They include:

• Age
• Religion or creed
• Race or color
• Nationality, national origin, or ancestry
• Sexual orientation
• Sex, pregnancy, or breastfeeding
• Gender expression or identity
• Marital, domestic partnership, or civil union status
• Disability
• Atypical hereditary cellular or blood trait, or genetic information, and the refusal to submit to a genetic test or make available to an employer the results of a genetic test

Any question that may expose or underline whether you are in a protected status is illegal.

Is the Interviewer Trying to Make Conversation or Illegally Refusing to Hire Me?

Questions that seem harmless might lay the groundwork for the person to decide not to choose you:

• “Are you married?” Do they want to get to know you in a friendly way, or do they want to avoid women they think may get pregnant? They may also want information about your spouse to see if you’re of the same sex or race. Some managers prefer single people they think will work more.
• “Do you have children?” Parenthood may be something you have in common that you can discuss in a friendly way or they may prefer to hire people without children because they think those employees will work more hours and have fewer distractions.
• “Where are you from?” Friendly chit-chat to start a conversation, or do they want to know whether or not you were born in the US or some country for which they harbor a bias?
• “When were you born?” or “When did you graduate from high school?” Does the person want to break the ice by chatting about events the two of you may have experienced at the same time, or do they want to avoid hiring people of a certain age?
• “What languages do you speak?” Unless speaking a language other than English is part of the job, they’re just trying to find out what your nationality or ethnic background is.
• “Are you disabled?” This question has nothing to do with the job. An employer can ask you whether or not you can perform the job’s essential functions, with or without accommodations (it’s often on job applications). Having a disability, in and of itself, is not a legitimate basis to deny you a transfer, promotion, or a job.
• “Do you have a domestic partner?” The interviewer wants to know your marital status and perhaps get more info to learn your sexual orientation.
• “Do you plan to become pregnant/have children?” If you’re wondering whether the interviewer is trying to weed you out for an illegal reason before this is asked, this question makes it clear they are. For a woman, legally, it should cause warning bells to ring and flashing lights to go off. This is none of a potential employer’s (or anyone else’s) business. They want to avoid hiring women who may wish to take a family leave or be distracted by a newborn child.
• “What religious holidays do you observe?” This could be asked by an employer wanting to learn what religion, if any, you belong to. They may wish only to hire those who share their faith, or they prefer people of no faith who won’t ask for extra time off for holidays.

There are many things an employer may legitimately ask and talk about. If the focus is on one or more of the above topics, it’s probably not a good sign.

How Should I Respond?

If you refuse to answer questions, including on an online application, you may not get the job. On the other hand, if you answer the questions, you may fall victim to the very same discrimination that concerned you from the beginning.

Our consistent advice is to tell the requesting entity, interviewer, or online application collector: “You may not realize this. _________ question(s) is/are improper and should not be asked or answered.” Your astonishing directness may paradoxically make you a stronger candidate who understands their rights and is not afraid to express them. If you are not selected for that reason, are you better off associating yourself elsewhere, in a work culture more aligned with your values?

If you are a litigious type, you may answer the questions, not get the job, promotion, or transfer, and then decide the reason for the employer’s adverse employment decision was pretextual (a lie) and discriminatory:

• You can claim you weren’t hired in retaliation for your opposition to their discriminatory practices
• They’ll deny they asked the questions you claim and state you weren’t hired for a legitimate, non-discriminatory reason: you were upset for no reason and stormed out of the interview
• Unlawful questions may be enough to get a case started, but raising the issue is not proof of discrimination

Ultimately you should do what is right for you. If you’re asked blatantly discriminatory questions and are offered a job, would you want to work for them? If they’re willing to break discrimination laws when they hire you, what health, safety, and well-being laws will they ignore after you’re on the job?

Kingston Law Group: Get Employment Law Help You Need from Attorneys You Can Trust

If you have any questions about employment discrimination, call the Central New Jersey law offices of Kingston Law Group at 609-683-7400, or contact us online for a near-term reduced fee initial consultation. We will listen to your facts, explain applicable laws, and advise you on how best to obtain legal, economic, and social justice.