Illegal question on job application. What to do?

October 3, 2006 11:08 AM

I'm applying for a job, and the application asks an illegal question. What do I do?

First of all, I'm not asking for legal advice. I'm asking for anecdotes, principles, and general kibbitzing about the situation and anything similar you've experienced.

Next, the legal issue: I have already spoken to an attorney who practices labor law, and it is that attorney's opinion that the question on the application violates the labor laws of the relevant U.S. state. So assume this is the case. If our analysis is correct, the statute creates a private cause of action with statutory damages, including fees & costs, for people in my situation.

Now, obviously, the reason I'm even concerned is that the question asks me to disclose information that I believe would negatively impact my chances. The labor law, in turn, is specifically designed to prevent companies from requiring this particular kind of information and using it in hiring decisions. The lawyer's take was basically, "yup, this question appears to be illegal, now it's up to you what action you want to take."

So... what to do? I guess I have lots of options, technically. I could bite the bullet and answer the question fully. I could specifically decline to answer that question, quoting the labor statute. I could walk away from the job entirely. I could sue, either now for requiring the information or later if they use it adversely. Oh, one more thing: this is basically my dream job, maybe not forever but for this point in my life, I have lots of personal connections with people there and I'm almost certain that I would get the job and that the application would have been a mere formality if not for this little problem. So I'd really rather make it work, if possible, than muck it up or just walk away.

If you'd rather email than answer in public, you can reach me at [e-mail] and your discretion will be respected.

posted by anonymous to work & money (24 comments total)

I would just not answer it - your option number 2. If it comes up, state why. Pretty simple.
posted by muddgirl at 11:13 AM on October 3, 2006

I'm the head of HR for a good-sized company with offices in lots of states. Sometimes things show up on our "corporate" app that are not legal in certain states. (We go through and revise it periodically, but sometimes we miss something, not because we're evil but because we're busy.)

They may not know the question is on there, or may not know it's illegal. Just skip the question and answer the rest of the app.
posted by pomegranate at 11:15 AM on October 3, 2006

I agree with muddgirl. Don't answer the question and don't mention why unless asked. Though you are in the right, pointing out their error might be taken the wrong way. If you want to notify them of the inappropriate question, do it after the selection process is complete.
posted by annaramma at 11:23 AM on October 3, 2006

I'm sorry, sue? For what exactly? If you go that route it must mean a lot to you for the costs that you will incur.

Ignore the question, obviously.
posted by JJ86 at 11:34 AM on October 3, 2006

if it's really your dream job, i'd just answer the question ... it's not right, it's not legal, but there are times you have to ask yourself - what's more important? ... getting the job or being right?

(of course if you had a few other opportunities going with other places and this didn't seem to be a "dream job", then you could try not answering)
posted by pyramid termite at 11:45 AM on October 3, 2006

Make copies of everything. Skip the question. If they bring it up, or take unwarrented action because of that information, reduce them to a smoldering pile of legal ashes.
posted by blue_beetle at 11:48 AM on October 3, 2006

Yep, skip the question. If they ask, say that you thought that question must surely have been put on by mistake, since it's illegal, and you *ahem* know they are an above-board company that wouldn't knowingly break the law.
posted by ilsa at 12:05 PM on October 3, 2006

If I knew the question was illegal, I wouldn't answer it. If it were mentioned by HR or an interviewer, I would say something along the lines of: "Since that question falls outside the state's labor laws, I didn't want to put the company at risk by making it appear as though you had demanded the information. I assumed that the form was a national form, and hadn't been updated for X."

(Yes, I know those sentences are evil. I am ashamed.)
posted by dejah420 at 12:34 PM on October 3, 2006 [8 favorites]

I'd agree, just ignore the question. If asked about it just let them know the question is illegal.

pyramid termite writes "if it's really your dream job, i'd just answer the question ... it's not right, it's not legal, but there are times you have to ask yourself - what's more important? ... getting the job or being right?"

The OP has said that answering the question will reduce her chances.
posted by Mitheral at 12:53 PM on October 3, 2006

I'm really curious about what the question is now.
posted by drstein at 1:12 PM on October 3, 2006

I agree with ilsa. If they ask why you skipped it, claim they must have included it by accident since it's against the law.
posted by Sprout the Vulgarian at 1:33 PM on October 3, 2006

what lisa said. but please do tell us what the question is.
posted by krautland at 2:19 PM on October 3, 2006

My guess is: they're asking if you were ever arrested.

Skip it. Chances are, they'll assume you meant "no" and move on. A background check would show convictions anyway, and in most states they can't use arrest records (that whole innocent-until-proven-guilty thing) against you.
posted by Merdryn at 2:58 PM on October 3, 2006

I agree that you should just not answer, and if asked why, give a response something like what dejah recommended.

I also wanted to clear up a misconception about the law in this case. IANAL, but my understanding is that in nearly all jurisdictions and under federal law, there's no such thing as an illegal question. Rather, there are types of information that it's illegal to use to make hiring decisions (marital status, ethnicity, sometimes gender or age, etc.), and so most companies refrain from asking you about those things because if they ask and then turn you down for the job, you could claim that they based their decision on their knowledge about your status. So you don't have standing to sue them just for asking the question. Your lawsuit would hinge on whether you could prove that they declined to hire you based on your answer to the question (and you may be able to recover damages if you can prove that they declined to hire you because you refused to answer the question). But such lawsuits are notoriously hard to prove and may affect your future employment prospects, especially if you work in an industry where employers talk to one another.
posted by decathecting at 3:07 PM on October 3, 2006

IAAL and there are illegal questions in every jurisdiction in the U.S. It is separately illegal to ask certain questions, not just to rely on the answers in making hiring decisions. You can email me off list if you want an article on disability-related questions that are unlawful under federal law and under California state law and why with citations. I'm ccenter at las-elc.org.

There is no "one size fits all" answer or strategy to what to do about unlawful questions during an employment application process. It depends upon many factors. There's tell the truth, lie, dodge, change the subject, etc. Only you can decide how to handle the situation and to weigh the risks and benefits.

One strategy used successfully by some of my clients -- they write "N/A" after an illegal question. It is assumed that the person means "No," when in fact they mean, "this is an illegal question so it is not applicable." That gets the person out of the terrible choice between lying and saying "No" (No, I never had a nervous breakdown, or whatever) or telling the truth, "Yes" (Why, yes, I was hospitalized in 1985 for two weeks, or whatever) and risking the job.
posted by ClaudiaCenter at 3:56 PM on October 3, 2006 [1 favorite]

IAAL and until recently I shared decathecting's understanding. So I did some research, and turns out, there are actually questions it is illegal to ask, not merely to use in making a hiring decision. I was kind of shocked.
posted by raf at 5:10 PM on October 3, 2006

Is it possible to ask your contacts in the company for advice on this issue? They'll have a lot of insight into the corporate culture that could help answer this question -- for example, whether or not the powers that be actually pay attention to it.
posted by brett at 5:25 PM on October 3, 2006

Sometimes when I'm driving down the road, I'll see a big piece of lumber in the middle of the highway, and I'll dodge it, just barely. Might come near to hitting some other cars. And I wonder, "Why doesn't someone get that out of the road?" Then I pull over to the side and I get the lumber out of the road.

Don't you kinda wish the last person before you had Done The Right Thing? Congratulations - you are the next last person.
posted by adipocere at 5:47 PM on October 3, 2006

I'm the head of HR for a good-sized company

never, ever trust HR.
posted by brandz at 6:44 PM on October 3, 2006

I learn something new every day... Thanks, and sorry for any confusion I may have caused.
posted by decathecting at 8:52 PM on October 3, 2006

this is basically my dream job...So I'd really rather make it work, if possible

Then get the job first, using N/A on the application. If they ask, gently explain it to them using ilsa's or dejah420's phrasing. But if they don't ask, I'd still find a gentle way to bring the error to someone's attention. If it's a dream job, you'd have the company's best interests in mind at that point, right?
posted by mediareport at 11:33 PM on October 3, 2006

I have to ask this - if you don't answer the question, will that also hurt your chances at getting the job? If so, then your only option seems to be to lie, if you really want it. If it later comes up at some point, only *then* would I consider taking any legal action.

But you can pretty much guarantee that you ain't getting the job if you sue them just for asking.
posted by antifuse at 3:15 AM on October 4, 2006

I think antifuse has the right of it. Lie. Surely they can't fire you latter for lying on an ilegal question?! This would be absurd (of course, 'The law is an ass' is essentially true).
posted by Goofyy at 3:40 AM on October 4, 2006

That's why illegal questions are so awful for the person who's trying to get the job -- it's not clear that lying in response to an illegal question is protected if the lie is discovered later by the employer. The cases go both ways, and there's no clear answer yet. So we can't tell people, oh, lie, don't worry. I mean, they may choose to lie, but there's a risk to lying (just as there's a risk to telling the truth). Yup, it's absurd.

For written applications, some people leave the question blank, but some people don't want to do that because they fear that they would be asked about the question specifically because "it would be the only question left blank." Some people lie. If there are blanks instead of Yes/Noes, sometimes people can use the "N/A" trick.

For interviews, people can answer quickly and change the topic to something more positive (skills, qualifications), can re-phrase the question to a lawful one and answer ("I think you're trying to figure out what work have I done recently"), can tell the truth or lie (again, with risks to both).

For either applications or interviews, the applicant could point out that the question is illegal, but for obvious reasons most applicants don't do that. What we do for people sometimes is have them send us a blank copy of the application, and then after their situation is in the past (they get the job or don't), and some time has gone by, we send the employer a letter stating that we've received the application and do they know that question 4 (or whatever) is unlawful. Often the employer will delete the question at that point.
posted by ClaudiaCenter at 8:34 AM on October 4, 2006 [1 favorite]