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Some interviewers, tests cross legal line

By Tiffini Theisen, The Orlando Sentinel, 11/24/02

Renee Zines expected to be asked about her typing skills and office experience when she applied for a clerical position.

But she was stunned when her interviewer at the podiatrists' office where she sought employment also handed her a 200-question personality test.

Some of the questions seemed harmless, if goofy, such as: ''Do you often sing or whistle just for the fun of it?'' Others offended the Melbourne, Fla., woman, such as questions about her moods, her eating and spending habits, how many friends she has, whether she likes to gossip or steal things, whether she has pondered suicide, and the number of children she plans to have.

Specialists say such tests - or any overly personal questions asked of job applicants - are rarely appropriate, and they can even be illegal.

Companies cannot ask applicants things about their private lives that have nothing to do with the job. For instance, asking prospective employees about their nationality or ancestry, how old they are, whether they're married or whether they're disabled or have health problems are all taboo.

The test that Zines took was the Oxford Capacity Analysis, a questionnaire created by the Church of Scientology that some employers use to screen applicants. This and similar tests became common in the early 1990s but have dropped off because of controversy and the tight labor market. Today, roughly one in five employers still uses them, according to the Society for Human Resource Management.

Zines said she faked her answers and later decided she would never work for a company that requested such private information.

''I felt that I was being violated,'' said Zines, 25, now a sales assistant for a telecommunications firm. ''I thought the questions were really personal. . . . Those questions have nothing to do with working at a podiatry clinic.''

Companies that cross the line into personal territory risk expensive legal action.

A Houston coffee company, at which managers asked an applicant several questions about his disability, was ordered in 1995 to pay him $45,000. The interviewers asked the job applicant how he became partially paralyzed, what treatment he received and how customers and co-workers dealt with his disability. He was not hired.

The Equal Employment Opportunity Commission considered the inquiries a violation of the federal Americans with Disabilities Act.

In an even bigger case, Rent-A-Center paid $2 million in 2000 to settle a class-action lawsuit by workers offended by a 500-question test that included questions about their religious beliefs, bowel movements, and sexual practices. The company based in Plano, Texas, agreed to stop using the test.

Interview questions are illegal if they seek to classify applicants based on categories protected under antidiscrimination laws, including race, national origin, religion, age, disability or marital status.

But the illegal questions are seldom as dramatic as those headline-grabbing legal cases. Instead, managers may blurt out no-no questions during interviews because they are simply making conversation or unaware that they're verboten.

Behind many of these gaffes is a genuine business concern. A manager who asks a woman whether she is married or has children may worry about excessive absences. A boss who wants to know an applicant's religion may be trying to find out whether he can work on Saturdays.

The key to handling these situations - for both interviewers and job applicants - is to steer the conversation to topics that are strictly work-related.

For instance, instead of asking, ''Are you a US citizen?'' interviewers should ask, ''Are you authorized to work in the United States?'' Instead of asking, ''How old are you?'' they should ask, ''Are you at least 18?''

Some job applicants may have to do this rephrasing for interviewers. If asked about child-care arrangements an applicant can say, ''If you're wondering whether I'll be able to work late some nights during busy times, that won't be a problem at all.''

''One of the biggest offenders is when people ask whether applicants have children,'' said Karen Battoe, a Longwood, Fla., business and career coach. ''Over the many years that I've interviewed for jobs, people have said to me, 'I know I can't ask this question, but I'm going to ask anyway.' That's a dumb comment for anyone to make. That's not acceptable.''

If an applicant with a physical disability is asked to detail his medical history, he can tactfully answer, ''I will be able to perform this job with reasonable accommodations.''

Whatever the case, the correct response is not to get hysterical and protest, ''You can't ask that question. That's illegal!'' Not if you want any chance of getting the job. Besides, you can't build a case against a company because of one stray question.

''Just because an illegal question has been asked does not necessarily mean a crime has been committed,'' said Jill Schwartz, a Winter Park, Fla., lawyer specializing in workplace law. Applicants who suspect they were not hired because of illegal interview questions must prove that the company demonstrated a pattern of discrimination, she said.

In most cases, interviewers are just curious, not trying to discriminate against people, said Matthew DeLuca, author of ''Best Answers to the 201 Most Frequently Asked Interview Questions'' (McGraw-Hill, $11.95).

''They're inexperienced, or they've been burned before and this is a way to address it,'' said DeLuca, who is also a human resources professor at New York University.

Still, job applicants should remember that they're trying to get the job, he said. Even if they decide they don't want to work at a particular place, they should strive to make a good impression to gain valuable interviewing practice and avoid burning bridges.

Finally, a job applicant may decide that a question is so harmless that he or she will answer it anyway.

''You could say in a very diplomatic manner, 'Even though that question is illegal, I'll answer it,' '' DeLuca said. ''It's hard to do that and not offend the interviewer, but you're putting them on notice that you're astute.''

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