Illegal interview question(s)?

[BigJaj]

Jurisdiction

Virginia

Given that it happened 13 years ago, I'm sure it's already past the statute of limitation by now. I had a job interview with a non-profit organization set up by a recruiting agency. Somehow I vividly remember an interviewer asking me about my ethnicity although I can clearly tell we're both generally the same race. It did caught me off guard back then given that it wasn't relevant at all to the job opening. I learned only a few years ago that it's illegal to ask a job candidate about his/her age, sex, race, nationality, religion, political affiliation/beliefs, etc. For future reference if it happens to me again, could I report it first to that organization's HR and then the EEOC? Or just the EEOC should do? Even if I'd have a strong case to sue them, wouldn't the only award most likely be that the judge orders the company to reimburse me for lawyer and filing fees?

 

[cbg]

It's long since too late to take any action about something that happened 13 years ago.

It is illegal to make hiring decisions on the basis of race, religion, age (40 and over), sex, disability, pregnancy, gender identity, sexual orientation and genetic information. Some states add additional factors such as political affiliation or smoking/non-smoking but the above list is the Federal list.

It is not technically illegal to ask the question, although a wise employer will realize that if they do not ask the question, they cannot be accused of making the hiring decision on that basis.

The above applies to employers of 15 employees or more (I am referring to private employers, both for-profit and non-for profit). Some exceptions apply if the employer is a government agency. All employment agencies are covered by this law.

In the hopefully unlikely event that it happens again AND you not only are not hired for the position but you have a valid and supportable reason to believe that you were not hired BECAUSE of your race, religion, etc., the proper agency to report it to would be the EEOC. The EEOC will investigate and may or may not take any action themselves but most likely will not; the most likely outcome is that you will be given a "right to sue" letter. Once you receive the RTS (and you CANNOT take any legal action until you receive it), you or your attorney have 90 days to file a lawsuit. Your odds of winning any such suit will depend entirely on how much evidence you have that but for your (fill in protected characteristic here) you would unquestionably have gotten the job.

90 days after you receive the RTS letter, if you have not already filed a lawsuit you are forever barred from doing so.

 

[BigJaj]

It's long since too late to take any action about something that happened 13 years ago.

It is illegal to make hiring decisions on the basis of race, religion, age (40 and over), sex, disability, pregnancy, gender identity, sexual orientation and genetic information. Some states add additional factors such as political affiliation or smoking/non-smoking but the above list is the Federal list.

It is not technically illegal to ask the question, although a wise employer will realize that if they do not ask the question, they cannot be accused of making the hiring decision on that basis.

The above applies to employers of 15 employees or more (I am referring to private employers, both for-profit and non-for profit). Some exceptions apply if the employer is a government agency. All employment agencies are covered by this law.

In the hopefully unlikely event that it happens again AND you not only are not hired for the position but you have a valid and supportable reason to believe that you were not hired BECAUSE of your race, religion, etc., the proper agency to report it to would be the EEOC. The EEOC will investigate and may or may not take any action themselves but most likely will not; the most likely outcome is that you will be given a "right to sue" letter. Once you receive the RTS (and you CANNOT take any legal action until you receive it), you or your attorney have 90 days to file a lawsuit. Your odds of winning any such suit will depend entirely on how much evidence you have that but for your (fill in protected characteristic here) you would unquestionably have gotten the job.

90 days after you receive the RTS letter, if you have not already filed a lawsuit you are forever barred from doing so.

What's the typical outcome say if the former job candidate wins the discrimination suit?

 

[army judge]

What's the typical outcome say if the former job candidate wins the discrimination suit?

Nothing is typical of one lawsuit to another, except they all involve a plaintiff, a defendant, witness(es), a judge, and very often a jury.

 

[cbg]

Before I answer that, what kind of outcome are you anticipating?

 

[Red Kayak]

Even if I'd have a strong case to sue them, wouldn't the only award most likely be that the judge orders the company to reimburse me for lawyer and filing fees?

What if the judge ordered you to reimburse the company for court costs due to a frivolous lawsuit?

It is NOT enough to claim that you were asked an inappropriate question. Do you even have proof beyond your own testimony? Can we safely assume that you were not hired? How can you be sure that you didn't get the job because of your ethnicity?

 

[zddoodah]

Your odds of winning any such suit will depend entirely on how much evidence you have that but for your (fill in protected characteristic here) you would unquestionably have gotten the job.

I agree. However, having litigated a few of these cases, the big hurdle is being able to survive a motion for summary judgment. For the OP's benefit, in this context, a motion for summary judgment would argue that, based on the evidence, the only reasonable verdict would be for the defendant, so there is no reason to take the case to trial. Most employers, if they believe they can successfully move for summary judgment, will do so. However, if they believe there is enough evidence for the plaintiff to survive a motion for summary judgment, then the employer is more likely to put significant money on the table to try and settle the case. Most employers would rather spend (e.g.) $100k to settle the case than spend the same amount to litigate the case through trial with the possibility of then getting tagged for a judgment on top of the fees incurred.

What's the typical outcome say if the former job candidate wins the discrimination suit?

The damages are essentially the difference in the position the plaintiff would have been in but for the discrimination less the position that the plaintiff actually is in. For example, if, following the discriminatory non-hiring, the plaintiff got a better job for more money, the plaintiff might not have any damages.

 

[hrforme]

One thing a lot don't realize is that the employer most likely can give another reason as to why the other person WAS hired and often it has nothing to do with any protected characteristic, so it is VERY hard for these to survive and have enough evidence unless one can prove a pattern of discrimination/adverse action against that specific protected characteristic. One question in one interview process is no where near that....

But agree there are some questions that it is just better not to ask. Then it can't be claimed that it was used in any decision.