Ask the Headhunter: Is it really illegal for employers to ask if you’re married?

While an employer asking about your marital status in a job interview may be uncomfortable, it's difficult to prove it's illegal, and if it is, there's often little practical gain for the job applicant to doing so. Photo by Flickr user quinn.anya

While a potential employer asking about your marital status in a job interview may be uncomfortable, it’s difficult to prove it’s illegal, and even if it is, there’s often little practical gain for the job applicant to mounting a legal challenge. Photo by Flickr user quinn.anya

Nick Corcodilos started headhunting in Silicon Valley in 1979, and has answered over 30,000 questions from the Ask The Headhunter community over the past decade.

In this special Making Sense edition of Ask The Headhunter, Nick shares insider advice and contrarian methods about winning and keeping the right job, on one condition: that you, dear Making Sense reader, send Nick your questions about your personal challenges with job hunting, interviewing, networking, resumes, job boards, or salary negotiations. No guarantees — just a promise to do his best to offer useful advice.

In a recent column, “The perfect response to a very personal interview question,” a reader asked what to do when employers ask what her husband does for a living. Other readers expressed concerns about being asked about their marital status. With over 130 comments posted to the column, it’s clear people want to know more about this thorny problem.

I turned for insight and advice to a friend and expert — retired employment attorney Lawrence Barty. (Larry has shared his thoughts with us before. (See “What To Do When Your Job Offer Is Cancelled.”)

Can an employer legally ask whether you’re married when you interview for a job? I was surprised to learn that, technically, the question might not be illegal.

Lawrence Barty: Under federal law, it is not illegal per se to inquire about an applicant’s marital status. The EEOC [Equal Employment Opportunity Commission] says that federal law does, however, prohibit covered employers from basing hiring decisions on the basis of sex. Accordingly, employers may not refuse to hire married women or women with children if it hires married men or men with children. In addition, many states have broader discrimination laws making that type of question flatly illegal.

The lesson: As with many questions of law, it’s complicated. Perhaps more important, the job applicant needs to check relevant state laws. What I like about Larry’s lawyerly thinking is that it’s not just about the law. Larry offers suggestions that are useful on the spot:

Lawrence Barty: The practical problem for an applicant who is presented with questions such as, “Are you married?” or “What does your spouse do?” or “Do you have children?”, is that the applicant hardly has time to ponder the potential illegality of the question.

You’re there in an effort to obtain a job that is presumably important to you. So, if you are asked a plainly illegal question such as, “How old are you?” or “What is your religion?”, what do you do? All you care about for the moment is whether you are going to get the job. If you do get the job, the illegal question is water under the bridge. So, you can answer the question or attempt to gently deflect it. If you obtain the position, you could – after you feel secure in your job – mention this problem to your company’s HR director, but that’s a decision for a later day.

Of course, the real question everyone wants an answer to is, what can you do if you feel your rights have been violated? Larry explains why, even if a court finds the employer broke the law, there may be no practical benefit to you if you can’t prove you were deprived of the job because you were asked an illegal question. (Don’t you just love the law?)

Lawrence Barty: Now let’s visit the other scenario – you are asked an unlawful question and then you don’t get the job. Generally speaking, the law that makes a particular question unlawful won’t directly result in a court order giving the job opening to the offended applicant. Instead, the unlawful question becomes some evidence that the company may have discriminated against the applicant.

But, if a plainly more qualified applicant was hired, or if the offended applicant lacked a necessary qualification for the job opening (e.g., five years financial accounting experience), the applicant – although undoubtedly offended – wasn’t damaged by the question.

In other words, it is possible that the illegal question (and whatever answer was made) did not deprive the applicant of the job. So, the company might be ordered by a court or an agency to cease asking the question and, in a few states, might be fined. Of course, that scenario would be of small solace to the applicant.

And what happens if you make your case and the court decides you were wronged?

Lawrence Barty: If a court finds that an employment decision adversely affected a claimant due to race, sex, etc. (which might flow from a factual finding that the employer asked an improper question), the usual remedy would be back pay from the failure-to-hire date to the decision date, along with an order to hire the plaintiff with retroactive seniority. That is the preferred remedy.

However, because the court decision is often three, four or five years after the fact, circumstances may make a hiring order infeasible. Or, sometimes front pay is requested by a plaintiff because he or she feels that being hired by the losing company would create an impossible situation. In such a case, a jury will be directed to additionally award front pay as well, making a guess as to when the plaintiff might reasonably be expected to find a comparable position.

Under federal amendments passed in 1991, a successful plaintiff is entitled to ask for compensatory damages and punitive damages. The amounts are up to a jury. Also, they will automatically be entitled to have their (reasonable) attorney’s fees paid by the defendant.

If you’re the employer, try not to lose a case. That is why many cases settle.

So, what do you do if you are asked “Are you married?” or “What does your spouse do for a living?” or “Do you have children?”

Lawrence Barty: The reality of life is that if you jump up on your chair and scream, “J’accuse!”, you probably will not get the job. And, trust me in this, becoming a litigant is a chancy and uncertain way to earn a living. So, unless the mere asking of the question makes you decide that you don’t want the job after all, you must either answer or cheerfully deflect the question and then – if you don’t get the job – consult with a labor law attorney to see if you might have a case worth taking to court.

Many thanks to Lawrence Barty for the legal lessons — and for his practical observations and advice.

Dear readers: Have you ever been asked job interview questions that you believe were illegal? What did you do about it, and what was the outcome? After reading our guest’s comments above, how would you handle such questions today?

Nick Corcodilos invites Making Sense readers to subscribe to his free weekly Ask The Headhunter© Newsletter. His in-depth “how to” PDF books are available on his website: “How to Work With Headhunters…and how to make headhunters work for you,” “How Can I Change Careers?”, “Keep Your Salary Under Wraps” and “Fearless Job Hunting.”

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