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 gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information.  It is also illegal and unethical to ask candidates about marital status, children, and health conditions.  However, during this challenging time of COVID-19, it seems some employers may be asking illegal questions and risking legal action.

Robin Ryan, with Forbes, has found that employers are asking two very distinct types of illegal questions: one about age; the other about children.

Ryan had a conversation with an attorney applying for a partner position in a law firm.  She stated the hiring law partners inquired about her age and how many children she had.  A Sales Manager was also being asked questions about children.  “Employers are very concerned to know if I’m married, if my wife works, how many kids I have, and who is handling the teaching since COVID has them learning remotely at home. I was caught off guard by these questions.  The exec asking me gave me the distinct impression that whether I’d be considered for the job was based on my answers.”

Employers and candidates both know the challenges of balancing remote work, office work, and distance learning while ensuring everyone is receiving the attention and quality of work they deserve.

There are a few ways employers can communicate with candidates about these topics without breaking the law or being perceived as an unethical employer.  First, clearly provide your company’s policies and procedures regarding remote / flexible work options along with the schedule requirements for the job.  Be up front and honest.  Second, you can ask questions regarding reliability, ability to meet deadlines, and productivity.  The following provide examples of illegal and legal questions that will assist you with gathering all the information from a candidate to make your best hiring decision.

Illegal:  How many kids do you have?

Legal:  Are you able to work the required schedule for this position?

Illegal:  Who’s going to care for your kids while you’re at work?

Legal:  Are you able to meet the attendance requirements for this job?

Illegal: Has your family ever caused you to miss a deadline for work?

Legal:  Tell me about your ability to meet deadlines.  Have you ever missed a deadline? Why, and how did you handle the situation?

Illegal:  How can you complete your work with kids in the house?

Legal:  We offer a work from home environment.  Are you able to provide yourself a distraction free workplace to ensure your productivity meets expectations?  Is there anything you might need to be better situated?

Illegal:  Do your kids play sports or participate in extra-curricular activities?

Legal:  How do you keep yourself busy after work hours?  What are your hobbies?

Illegal:  Have you or a family member contracted COVID-19?

Legal: Tell me about how your feeling given this uncertainty of these times.  How do you handle the stress we have all been experiencing?  Where do you think you could improve do lighten your stress?

As we all navigate through the next few months, recruiting will continue to evolve.  Employers need to use interviews to find out if a candidate will be a good fit for a job and the company, however they also need to be aware of any illegal and unethical questions prior to interviewing.  Ensure your hiring managers are well trained in interviewing and that they understand all questions asked must be directly related to the candidate’s ability to perform the job requirements.

Resources:  Forbes, EEOC