How Should an Employer React when an Interviewee Voluntarily Gives Unwanted Information During an Interview?

By: Starlin Colon*

Most employers have heard of the dreaded interview questions that are illegal. These are questions that solicit information involving the following: age; race, ethnicity, or color; gender or sex; country of national origin or birth place; religion; disability; marital or family status; or pregnancy. Knowing this type of information is likely to make a company liable in a discrimination lawsuit. Employers need to avoid asking those types of questions when conducting an interview to protect themselves against a lawsuit. Employers who are aware of the law avoid asking these questions to make sure they are not soliciting this information. However, what happens when the interviewee gives that sort of information without being asked? What happens when the employer stays away from all those questions, but finds out about the information anyway?

Laws prohibiting discrimination

The federal government has many employment discrimination laws in place to protect persons from being discriminated against. The Equal Pay Act, for example, prohibits employers from paying different wages based on the employee’s sex if the workers perform equal work on the same type of job. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, or national origin. This act also includes pregnancy and childbirth. The Supreme Court of the United States has held that Title VII tolerates no discrimination, subtle or otherwise. Another prominent act in the employment discrimination laws is the Age Discrimination in Employment Act. This act protects people between the ages of 40 to 65 by prohibiting employers from discriminating against them. Although some of these characteristics will be easily noticeable when the person walks into the interview, employers must keep that information out of their decision-making process.

Unfortunately, there is no way to get rid of information an interviewee gives voluntarily, even if the employer would rather not know. However, there are ways of remedying the problem so as to avoid a discrimination lawsuit. I explain two methods below.

Method one

One way to react to an interviewee’s voluntarily giving an employer information the employer does not want to know is to move on to the next question or topic. It would be easy for an employer to say, “they brought it up, not me,” and continue to talk about it. However, this mindset would still subject the employer to liability in a discrimination suit. The problem with the “illegal” questions is not the fact that the employers are asking them; the problem is that the employers find out about the information. The laws are in place to prevent an employer from discriminating based on the person’s information; this can occur whether the employer asks the questions or not. If the employer can show that he or she moved the conversation to another topic, it will be good proof that he or she was not discriminating against the person when making the hiring decision. By moving on to another topic, the employer shows that he or she had no interest in the specific information and only cared about whether the person had the skills necessary to excel at the job.

Method two

Another way of dealing with an interviewee’s giving unwanted information is for the employer to make sure that no notes are taken on that part of the conversation. It will not look good for the company, in case of a lawsuit, to have notes on information that could be used for a discriminatory purpose. The employer is not supposed to be using that information in the decision-making process, so there should not be any notes about it.

Conclusion

No matter how careful an employer is in preparing for the interview and avoiding questions that would solicit information prohibited under the Employment Discrimination Laws, some candidates will volunteer this information. Although employers cannot forget the information, they can eliminate it as a discussion point and hiring factor. Proving that the employer did not solicit the information and ignored it when it was volunteered is a very strong indicator that the employer did not take the information into account while making the hiring decision. The company would be able to defend itself well in a lawsuit if it can prove the information volunteered by the employee was not used in decision-making. Employers, unfortunately, do not have many options when dealing with information volunteered by the interviewee. The main thing they can do to protect themselves is to act like it was never said and avoid continuing the topic in their conversation.

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*This post was checked for currency on September 12, 2018 and reproduced with permission by author Starlin Colon.  Original post can be found here.

Starlin Colon, at the time of this post, is a third year law student from Penn State’s Dickinson Law. Originally from the Dominican Republic, he plans to take the bar exam in Pennsylvania.  A Penn State grad, he is interested in business transactional law.