Employers Admit They're Breaking the Law When Hiring People

Vince Fortunato shakes hands with a job applicant during a job interview at the Career Link Center One Stop job center May 7, 2010 in San Francisco, California. One in three hiring managers admitted to asking illegal questions in a new ResumeBuilder report.

When you sit down for your next job interview, consider this: a third of hiring managers admit breaking the law during the recruiting process.

The government protects candidates from being asked questions regarding things like age, identity, disability or family status. But in a new Resume Builder survey, one in three hiring managers said they ignore the rules and ask anyway.

The survey, which spanned 1,000 hiring managers across America, also found that 60 percent regularly ask about a candidate’s identity, and 56 percent illegally inquire about family, pregnancy or marital status. Plus, 62 percent said they ask about the candidate’s prior salary.

“There are a variety of reasons why hiring managers will ask illegal questions, even though they know they are illegal,” Resume Builder’s resume and career strategist Julia Toothacre said in the report.

“Many job seekers are desperate for work and they believe that not answering a question might take them out of the running for a position, especially if it’s a question where the answer would work in their favor.

“Many also don’t know what is illegal to ask, so they answer questions openly, not thinking about the consequences or bias someone might have.”

While illegal, many hiring managers rationalize their questions because they want to make sure other priorities or situations won’t hinder an employee’s ability to work, Toothacre added.

“If you’re a parent or have a disability, people believe there is a higher likelihood of you using sick time, asking for flexibility, or having emergencies,” Toothacre said. “In the eyes of a hiring manager or owner, time is money, especially if these are things they don’t have experience with personally.”

There was a gender variance among hiring managers who asked the illegal questions as well. Among the men surveyed, 18 percent asked illegal questions all the time or often, while just 3 percent of female hiring managers said the same.

“I’m not surprised that women ask these illegal questions less,” Toothacre said. “In many cases, they are targeted at them, so they know how it feels to be on the other side of an illegal question and lose an opportunity because of it.”

Asking the questions is not without consequences. Of the hiring managers who admitted to asking illegal questions about identity, 72 percent said the applicant’s answer is either very likely or somewhat likely to affect if they get hired.

Ageism can also play a role in the hiring process, and unluckily for candidates, three in five hiring managers said they ask applicants their age. This could have severe impacts if the manager or company has a bias against either older or younger workers.

Poor taste

“Age discrimination is one of the most common things I hear about,” Toothacre said. “My challenge to hiring managers is to see the benefits from both ends of the age spectrum and not assume how or why someone is making career choices.

“Many older candidates I’ve spoken to are interested in lower-level positions because they don’t want stress at the end of their careers. It means they will stay in the position longer and don’t care about being promoted.”

HR consultant Bryan Driscoll said he wasn’t surprised by Resume Builder’s findings but it does call into question what other practices hiring managers might be engaging in.

“What else are they doing that they’re not admitting to?” Driscoll told Newsweek. “This alarming insight underscores a profound disregard for legal boundaries and ethical norms. And honestly, it’s just in poor taste. Are you trying to throw one by candidates? Are you trying to see how far to push the boundaries? You’re clearly a terrible manager.”

Driscoll said the managers probably view their illegal actions as a “calculated risk.”

The fix

“They believe the benefits of uncovering certain information about a candidate outweigh the potential legal repercussions,” he said, adding that the actual number of hiring managers who ask illegal questions is likely far higher.

To fix the problem, Driscoll said companies need to prioritize comprehensive training for hiring managers to prevent unethical practices during the hiring process, but many won’t because they aren’t incentivized to do so.

“If organization leaders find out about these practices and do nothing, they’re complicit and the company deserves the legal and reputational damages that will inevitably come its way,” Driscoll said.

Most of the time, Driscoll, said the issue arises due to ignorance on the manager’s part.

Jennifer Magas, a VP of Magas Media Consultants, a professor at Texas Tech University and a former employment law attorney, said in her years of experience handling employee relations, the two most problematic questions always came down to if the hiring candidate planned to have children or already had a family.

Cautionary tale

“When I was 8 months pregnant with my first child, I was on a conference call with a president of a division who was livid a former employee was suing for pregnancy discrimination because she knowingly took a position at his location when she was three months pregnant, fully knowing she would be not be available during the company’s busiest time of year,” Magas told Newsweek.

Employers in this situation feel they are vindicated in asking candidates about their family plans due to scenarios like this, but it can expose them to significant legal trouble under the Pregnancy Discrimination Act and cut their talent options in the process.

“A candidate can see this answer as inappropriate, and he or she can become uncomfortable, but even worse, he or she can use this question against you,” Magas said. “It is not uncommon for rejected job candidates to blame possible prejudices or biases from the interviewer for the reason they did not get the job.”

Still Allison Vaillancourt, the vice president and senior consultant in the organizational effectiveness practice at Segal, an HR and benefits consulting firm, cautions candidates from outright calling out employers when they invariably do ask questions like this in an interview.

“While, ‘You know that is an illegal question’ may feel like the right response, candidates may want to consider other options,” Vaillancourt told Newsweek.

Vaillancourt said one candidate at a law firm took this type of question in an entirely different path, and it protected her from being overlooked or endorsing an illegal interview question.

“Rather than answering the question about how many children she planned to have, she took the conversation in a different direction,” Vaillancourt said. “‘My family plans? Well, for this year we are spending Thanksgiving with my parents and we’ll be with my husband’s family at Christmas.'”

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