Mark Pestronk
Q: I want to hire some new employees at my agency. I would prefer not to hire any mothers with young children because they tend to take too much time off for child-care-related needs. I would also prefer not to hire old, experienced agents because they tend to be set in their ways and are unable or unwilling to handle the newest technology. I have been told that it is illegal to ask an applicant whether they have kids or even how old they are. Is that true? Whatever happened to freedom of speech in this country?
A: It is true that some state laws make it illegal to ask an applicant certain questions. It is also true that a rejected applicant can sue you if you make your decision based even in part on an answer to an illegal question.
I used to think that although it is illegal to base an employment decision on grounds that violate civil rights laws, there was no harm in asking questions. After all, asking doesn't necessarily mean that you are going to actually discriminate.
However, my assumption was wrong. My research shows that asking itself is illegal, at least in some states. For example, in California, it is illegal "for any employer ... to make any non-job-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation or military and veteran status."
California prohibits all employers from asking questions that imply that your company has any non-job-related restrictions based on any of the 17 grounds named in the law. Interestingly, questions about whether an applicant has children are not one of the 17.
However, both state and federal agencies tend to see children-related questions as evidence of sex discrimination. According to the U.S. Equal Employment Opportunities Commission, "Questions about marital status and number and ages of children are frequently used to discriminate against women and may violate [the law] if used to deny or limit employment opportunities ... .
"The following pre-employment inquiries may be regarded as evidence of intent to discriminate when asked in the pre-employment context: whether applicant is pregnant, marital status of applicant or whether applicant plans to marry, number and age of children or future childbearing plans, child care arrangements, employment status of spouse or name of spouse."
Note that both state and federal laws prohibit these questions if they are "not job related." Conversely, you can ask these questions if they are job related.
Are your preferences really job related? If you were sued, you would have the burden of proving, for example, that older employees can't learn new technology. If you couldn't prove it by documentary evidence, then every employment lawyer would tell you that you would lose a discrimination suit. So you should probably not ask these questions.
Each state's employment laws are different, and some laws do not apply to very small companies, so you need to consult a local employment lawyer if you have questions about what is allowed in your state.
Whatever happened to freedom of speech? The answer is that speech that violates civil rights laws is not protected.