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How to Respond When You Are Asked an Illegal Interview Question

By Gerald Walsh ©

All provinces in Canada as well as the federal government have laws that protect individuals from discriminatory hiring practices.

This means that, when hiring, employers cannot discriminate in any way based on age, race, colour, religion, creed, sex, sexual orientation, physical or mental disability, ethic, national or aboriginal origin, family or marital status, irrational fear of contracting an illness, source of income, association with protected groups or individuals, and political belief, affiliation or activity. Further, employers cannot ask any questions about any of these topics unless it is specifically relevant to your ability to do the job.

Quite often employers get mixed up and ask illegal questions unintentionally. For example, let’s say an employer wants to ensure all applicants, because of the nature of the job, are able to work overtime, on short notice, and travel frequently overnight. Most people think that having children, particularly young children, could impair a person from working these extra hours. An employer, not thinking about how the question is posed, might then ask: “How many children do you have?” That’s an illegal question.

However if it is re-phrased to: “This job requires overtime on short notice and frequent overnight travel. Is that okay with you?” Then the question is fine because that’s a job requirement.

Examples of questions about family and marital status that an employer, by anyone’s definition, cannot ask legally include:

Are you planning on having any more children?
Are you pregnant now?
How does your spouse feel about you taking this job?
That’s a pretty ring. Did your husband give it to you?
What child care arrangements have you made for your children?

Questions about age is another touchy area. Some employers, particularly when hiring for senior management positions, want to think a person will stay in the job for ten years or more. If they believe that most people plan to retire in their mid-sixties, they might be reluctant to hire someone older than 55 (or even younger.) This sometimes causes them to ask illegal questions like: “How old are you?”, “What year where you born?”, “When did you go to high school?” The only time when age is relevant to the job is when the job requires someone to be a certain minimum legal age, such as bartender position. In that instance, it is okay to ask for proof of age as it is a requirement of the job.

Say you walk with a limp or with the aid of a cane due to a physical disability. The employer is not permitted to ask about your disability. If however the job requires a certain level of physical work, he should ask every candidate the same question, like “This job requires that you be able to lift 50 pound packages and place them on shelves in the warehouse. Are you able to do this?”

With all these questions – whether it is about age, ability, family, race or religion – a key question for you as a candidate is: how should you respond if asked?

One effective way to deal with this is to ask yourself: Was the question just an unintended gaffe by someone who didn’t know any better? Or was it the result of real bias on the part of the person asking the question?

I know a woman, named Robyn, who in the course of being interviewed for a job had tea with the mostly-retired founder of a business, a gentleman in his eighties. During their tea, he asked Robyn about her family and what ages her children were. While technically the questions were illegal, Robyn took no offense realizing that the founder was just being friendly and conversational and she chose to tell him her children were 8, 10 and 14.

However, if it feels to you that the question is purposely designed to bias the selection process, then you should ask yourself whether you really want to work for an employer who behaves this way. Are these the types of bosses that you would be proud to tell your friends about?

Alternatively, you could ask, “How does that question relate to my ability to do the job?” Or, “How is that relevant to this job?”

The choice of whether or not to answer the question is yours.

My experience is that most employers are not out to discriminate against job applicants and that the questions they ask that fall into the “illegal” category are unintended. By simply pointing out that the question is illegal, most interviewers will realize immediately what they have done and withdraw the question.

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Gerald Walsh is an executive recruiter, career coach, public speaker and writer. During a 25+ year career, he has interviewed more than 10,000 job candidates, completed hundreds of successful searches for a range of organizations and guided many individuals – from young professionals to senior executives – to successful career change. He is the author of “PINNACLE: How to Land the Right Job and Find Fulfillment in Your Career.” You can follow Gerry on Twitter @Gerald_Walsh and LinkedIn