Court TV's Legal Cafe

Getting Hired

The following is excerpted from The Court TV Cradle-to-Grave Legal Survival Guide, an easy-to-read, in-depth explanation of the law as it affects all aspects of daily life. You can order the book, published by Little, Brown and Company, from our online store. It also is available in local bookstores, or you can call Little, Brown directly at (800) 333-3476.

ARE CERTAIN QUESTIONS OFF-LIMITS DURING A JOB INTERVIEW?

Yes. According to state and federal laws, prospective employers generally must limit their inquiries to topics that explore your qualifications for the job. Any questions that probe for personal information that can be used to discriminate against you are no-nos. Not that it stops some prospective employers from trying to decipher the information more indirectly. A seemingly friendly question about your name ("Gee, Kotzamani, that's interesting. Where's your family from?") is not so friendly if the interviewer is really trying to scope out your race or nationality.

The specific topics you cannot be asked about in a job interview include:

  • your age
  • your sexual preference
  • your national origin
  • your race
  • your religion
  • your medical history
Which is not to say that every friendly question is a veiled attempt at discrimination. Potential employers are allowed to inquire whether you're married and the ages of your children--so long as they ask every potential employee the same thing--and don't base their hiring decisions on the answer. If, however, only female job candidates are being asked their marital status, and if the company is not hiring any candidates with children under age five, then what is a totally legal question may be suspect. (Once you are hired an employer may have a legitimate business reason for asking your marital status, since it may be relevant to the tax deductions taken from your paycheck or to your health insurance coverage.)

You can often judge whether a potential employer is prying improperly by the manner in which the questions are stated. If, for instance, you mention you are divorced and then the interviewer asks you to elaborate on the details of when and why it occurred, those questions may suggest a discriminatory motive.

If you believe you have been discriminated against you can register a complaint with the company's human resource department or you can pursue a lawsuit.

WHAT INFORMATION IS A FORMER (OR CURRENT) EMPLOYER ALLOWED TO PROVIDE?

Potential employers are free to ask for and check your references, but your previous employers can't say just anything. The laws vary from state to state, but the same issues (such as age, race, medical condition, credit history and sexual preference) that are off-limits in a job interview are off-limits in a discussion with your former employer. The purpose for this restriction is to prevent an employer (or potential employer) from snooping out information that can be used to discriminate against you.

Generally, an employer or former employer can release information about your:

  • position
  • dates of employment
  • salary
  • the circumstances under which you left the job
Which is not to say that your former (or current) boss can't give a candid assessment of your performance. If, for instance, you were fired because you stole money from the company your former boss is free to disclose this information. If you were difficult to work with, your former boss can say so. He or she just better be able to back it up.

Many companies now ask departing workers to sign a release allowing them to provide personal information to potential employers. However, an employer is not required to have a release before giving out information about you. Also, your signature on such a form (no matter how it's worded) does not give your former boss carte blanche to say just anything about you. If a former employer gives out damaging or untruthful information about you, you may still have the grounds for a lawsuit even if you signed a release form.

An employer who is giving out false information about you can be sued for defamation or invasion of privacy. To prevent getting entangled in such lawsuits, some companies now will only respond to written inquiries, and the only information they will provide are your dates of employment and job title. However, an employer who fails to disclose completely the reasons why a job candidate should not be hired, could be sued by the new employer for giving a false or incomplete reference.

Note: In some instances where an employer fires a worker for a reason that cannot be substantiated, the worker may be able to succeed in a defamation suit, if he or she was forced to tell prospective employers the presumably false reason for leaving the previous job. For example, several insurance company workers were fired for "gross insubordination" when their expense forms were challenged after a business trip. The employees refused to change the forms, claiming they were accurate. When they interviewed for new jobs, they had to repeat the former employer's allegations, and they claimed this constituted defamation. A jury agreed and awarded them roughly $450,000, which was upheld on appeal.

CAN A PROSPECTIVE EMPLOYER DO A BACKGROUND CHECK?

Yes. However, the courts in all states have recognized that people have a right to privacy, so a prospective employer probably shouldn't be snooping into your personal life and asking about things that don't have to do with the position. Also, according to the federal Fair Credit Reporting Act, the employer can seek out records of your credit history without your permission. CHECK whether any states limit it. But if you are denied a job because of information received from a credit reporting agency, the employer must give you the name and address of the agency that made the report.

ARE PRE-EMPLOYMENT TESTS ALLOWED?

Yes, so long as the employer has a legitimate business reason to give them and so long as all applicants for a similar position are required to take them. There are limits, however. The Americans With Disabilities Act prohibits pre-employment medical examinations, and some states have restricted the use of psychological tests. (The Americans With Disabilities Act also prohibits psychological tests if they are being given for medical purposes.) And many states only allow an employer to take fingerprints or photographs if the applicant will be working in the following positions:

  • safety officer (such as a policeman or security guard)
  • the driver of a vehicle
  • child care employee
  • school employee
  • operator of dangerous equipment
You usually must be offered the job before the photographs and fingerprints can be taken.

The use of lie-detector tests is also limited Federal Polygraph Protection Act of 1988 to people who will be working in the following positions:

  • security guards
  • armored car personnel
  • security alarm design, installation or maintenance
  • manufacture, distribution or dispensing of controlled substances

CAN A PROSPECTIVE EMPLOYER MAKE A PERSON TAKE A PHYSICAL?

Yes, but not until you've been offered the job. That's a requirement of the Americans With Disabilities Act. The employer can reject you after getting the result of the physical exam, if they show that you have a health problem or disability that will seriously affect your ability to perform the job.

CAN A PROSPECTIVE EMPLOYER CONDUCT A TEST WITHOUT THE APPLICANT'S KNOWLEDGE?

The law on testing varies from state to state, but generally it's a good business practice for an employer to inform you of a test's purpose. Most states allow prospective employers to test for drug use, and some require that you be informed beforehand. An employer can reject an applicant who tests positive for current drug use.

Federal law does allow an employer to ask you to take an AIDS test, but only after you have been offered a job. And then the employer is restricted in what he or she can do with the information. The job offer cannot be rescinded unless the employer can prove that there is a legitimate basis for requiring you to be HIV-negative. And in some states, you must give written permission before the test can be given.

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