Help Wanted. Please Have Résumé, References and Details of Sexual Inclinations

[MountainLaurel]

I could not imagine going in for a job interview and filling out a questionnaire dealing with my sex life. Is this another way to get around anti-discrimination laws?

So, this guy's looking for a job. He's a writer and was laid off in October. He answers an ad at a D.C. communications company and -- yes! -- gets an interview.

Part of the process is to take a few tests. There's a writing and editing test, of course, and then there's this other test, sort of like that Myers-Briggs test so many HR departments are fond of, a test that asks a bunch of seemingly random questions to zero in on your personality type.

It starts out simply enough:

snip

And then it gets a little freaky:

57. Do you prefer ordinary sex?

Um, well. . . .

100. Would you go to a wife-swapping party?

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/20/AR2009052003760.html

[MindPilot]

1. I once filled out an app that asked "how much is in your checking account?"

also what credit cards I carried, their balances, who I lived with, and what I drove.

Obviously I would stand on the freeway ramp with a sign before taking a job working for people who thought asking those questions on an app was ok so I had a little fun with it.

And of course...it was an IT job.

[babylonsister]

2. Isn't that illegal?

:wtf:

[Laelth]

3. I doubt it's illegal, unless the entity asking the questions is the government.

If the employer is private, they can ask anything they want. If you don't want the job, don't answer. Of course, if their reason for not hiring you violates civil rights laws ( that protect race, age, national origin, gender, religion), then you may have a viable civil action against the employer. Sexual orientation is not protected in this country. Everyone is free to discriminate against gays or straights (or any other sexual orientation) at will, without any recourse.

:dem:

-Laelth

[babylonsister]

4. I didn't know that. I thought people's sex life was off limits, too.

It should be.

[primavera]

5. I wonder about that too

I know that the philosophy Laelth mentioned, i.e., that an employer is free to ask any question they like, is pretty dominant in this country, but still, surely there have to be some limits on what an employer can extract from an applicant. The idea that, if you don't want to answer, you don't have to apply for the job, seems analogous to the "my way or the highway" mentality embodied in contracts of adhesion, which are being viewed with increasing disfavor by the courts as the parties drafting the contract seek to make the terms ever more lopsided in their favor.

[Laelth]

10. To my knowledge, no question that a prospective employer asks is illegal.

How could a question be illegal? It might be tacky to ask, or the question might be evidence of discriminatory intent, but asking it isn't illegal.

See the comments following this thread:

http://www.hrworld.com/features/30-interview-questions-111507/

However, there is a lot of EEOC Guidance on these subjects, and the EEOC (to the extent it writes laws) does, in fact, have a long list of "employers may ask X and may not ask Y." Keep in mind, though, that this is "Guidance." Here's a sample on the ADA (Americans with Disabilities Act): http://www.eeoc.gov/policy/docs/preemp.html.

:dem:

-Laelth


Edit:Laelth--added mention of EEOC Guidance.

[primavera]

12. But it's not just a question

The employer is not a disinterested party asking a stranger something for no reason. The fact that they ask a stranger, i.e., someone of whom they can have no possible interest other than a purely professional one, in the specific context of an employment application, and will reject any application which declines to answer the question, plainly is not just asking out of random curiosity. Plainly, it is the purpose of the employer to use the information they obtain as part of their assessment of the applicant's competence to perform the job. If the questions they're asking can have no possible bearing upon an applicant's qualifications, how can that be anything but discrimination? And is not employment discrimination illegal? :shrug:

[Laelth]

18. Some employment discrimination is illegal.

Race, national origin, gender, religion, and age, for example, are "protected" and a company can't usually refuse to hire a prospective employee for any of those reasons, but the kind of sex life enjoyed by the employee is not "protected." Most kinds of discrimination are not illegal. An employer can fire an employee for having a nice smile in Georgia, and there's nothing illegal about that. The employer discriminated, yes, but smiles aren't "protected" by federal law, and so it's legal to discriminate upon that basis. Again, asking a question isn't illegal unless one is soliciting a crime. It may be evidence of discriminatory intent. That's doesn't mean that actual discrimination actually happened. Illegal discrimination is only actionable if it happens (i.e. you don't get hired because of your race or gender), and I can promise you that the company will argue there was a different, non-discriminatory reason that you weren't hired. Then it will be up to a jury to decide who's telling the truth.

Hope that makes sense.

:dem:

-Laelth

[primavera]

13. Self delete - accidental duplicate

[Bluenorthwest]

8. The protections vary from state to state

It is not legal to discriminate against anyone for sexual orientation in CA, for example, in employment or in housing under the CA Fair Employment and Housing Act. It is not legal any longer in my current home state of Oregon either.
Of course there are many states that do allow such discrimination, and the Federal law is as you say, non inclusive of sexual orientation.

[Laelth]

9. I am glad that CA and OR have passed some enlightened law on this subject.

As you rightly note, my remarks about sexual orientation were an attempt to describe Federal law and protections.

:dem:

-Laelth

[SheilaT]

6. Questions about marital status,

how many kids you have and their ages, your religion, and various other things are forbidden. At least by employers who employ more than some number of employees. I suspect asking gender preference and attending wife-swapping parties is also beyond the pale.

I have several times had to take those forced-choice "which would you rather do" questionnaires and I HATE them. All too often none of the choices are remotely appealing, or more than one is very appealing to me. I am not at all certain that those tests have actually been validated the way such tests should be -- you give them to a whole lot of people over a period of time and then go back and see if the results correlate significantly to quality of the employee.

There's another set of tests, usually given by retail stores, that ask a lot of questions about what you would do if an employee who'd been there for years suddenly stole $5.00 out of the cash register. The answer they apparently want is you'd fire them on the spot, but I always think a little compassion is a very good thing, and that I'd want to know a whole lot more about the circumstances and the history of that employee before I made any firing decision.

Is it any surprise that I am never hired by such companies.

[Laelth]

11. I looked, and I can't find any law that says asking a question is illegal.

Unless you're soliciting a crime, of course. From what I can tell no question that an employer may ask in an interview is illegal. At most, such a question might be evidence of discriminatory intent.

See the comments following this thread: http://www.hrworld.com/features/30-interview-questions-111507/

However, there is a lot of EEOC Guidance on these subjects, and the EEOC (to the extent it writes laws) does, in fact, have a long list of employers may ask X and may not ask Y. Keep in mind, though, that this is "Guidance." Here's a sample on the ADA (Americans with Disabilities Act): http://www.eeoc.gov/policy/docs/preemp.html.

:dem:

-Laelth

Edit:Laelth--added mention of EEOC guidance.

[SheilaT]

14. I believe it's federal laws

that forbid such questioning.

And I think it's contained in Title VII of the Civil Rights Act of 1964.

It took a few years for companies to catch on, and even today you hear of egregious violations. Companies used to get away with not hiring married women because "They'll only get pregnant and leave", or not promoting them for the same reason or not hiring or promoting single women because they'd only get married. It's why women were largely confined to low-level jobs, or teaching, or librarian, or just a few other occupations for so long.

But women sued, based on Title VII, and gradually things changed.

I recall that in 1969, when the company I was working for was having cut backs, they laid off the woman they knew was pregnant, even though she was senior to another woman. I thought it grossly wrong, and it was justified because the pregnant one would only be going on leave in a few months anyway. Not too many years later that changed, and in 1982 when I was applying for a job, and at the employment physical told them I didn't want a back x-ray because I knew I was pregnant, I was still hired, and in fact informed that they could not at that point refuse to hire me even though I was pregnant.

So I strongly suspect that such questions really are illegal, and it may take a few more law suits for companies to understand that.

[elleng]

15. Haven't checked whether the mere asking is illegal,

while basing decision to hire (or to rent to, etc) may be. One of the fine lines the law draws.

[SheilaT]

17. In some situations the mere asking of questions

has been deemed illegal. Questions about marital status, religious affiliation, ethnicity, childcare plans, those have all been deemed illegal even to ask. Not that all employers follow the law, and not that they can't sometimes find a way around outright asking to figure out things. I have been looking for work (recently landed a full-time, permanent, insofar as anything is permanent these days, job with benefits) and almost always volunteered the information during interviews that my two sons are grown and out of the house. That establishes that I won't have any child care complications, something they can't ask me directly. I have no idea to what extent my current day-care-needs status made a difference in the hiring decision, but I made sure the information was out there.

[Alcibiades]

7. Many of the federal employees I know

folks who are highly conventional outwardly, are actually swinging wife-swappers or serial cheaters. Many of the military/law enforcement types, clean cut churchgoers, also privately do things that would make Gannon blush.

[RJ Connors]

16. I'm sure I would fail on question #100

I would also probably answer question #57 with, "No, I prefer Extra-ordinary sex