mostly bad behavior that isn’t illegal

by Alison Green on July 12, 2013

It’s Flashback Friday — thanks to commenters who suggested that it would be interesting to occasionally re-publish posts from long ago and give people a chance to discuss them now, rather than leaving them to wilt in the archives. This one was originally published on July 21, 2009.

(And if you have any old favorites that you’d like to see reposted, let me know.)

Things that many people think are illegal that actually aren’t:

1. There’s a widespread but incorrect belief that it’s illegal for an interviewer to ask about your religion, national origin, marital status, number of children, etc. In fact, in most states, the act of asking these questions is not illegal. What is illegal is basing a hiring decision on the answers to these questions. Therefore, since the employer can’t factor in your answers, there’s no point in asking them and smart interviewers don’t. (That said, it is illegal to ask about disabilities.)

Here’s some advice on how to handle it if you’re asked these questions.

2. At least once a month, I hear someone say it’s illegal for employers to provide a detailed reference, or any information beyond confirming job title and dates of employment. Not true. It’s legal for an employer to give a detailed reference, including a reference, as long as it’s factually accurate. (That said, some companies do have policies that they won’t give references, but these policies are easily gotten around; I’ve never had a problem obtaining a reference for a candidate, and I’ve checked a ton of them.)

This item is the reason for “mostly” in the title of this post; I’m a believer in honest references. But if you’re worried you’ll get a bad reference, here’s some advice on handling it.

3. It’s not illegal for your boss to be a jerk. It’s unwise, but it’s not illegal. The exception to this: If your boss is being a jerk to you because of your race, gender, religion, or other protected class, then you do have legal protection. But 99% of jerky bosses act like jerks because they just are, and that’s legal.

4. It’s not illegal to not give paid vacation or sick days. There’s a very small number of jurisdictions that require a certain number of paid sick days, but the majority of people in the U.S. live in places not covered by those laws, and no state that I know of requires vacation time. Of course, most employers do offer paid vacation and sick days in order to be competitive and attract good employees — but there’s a difference between what’s smart/customary and what’s legal.

5. It’s not illegal to reassign you to different duties or even a whole new job, assuming you don’t have a contract that says otherwise.

6. It’s not illegal to require you to attend work-related events outside of regular work hours, although if you’re a non-exempt employee, you must be paid for it.

Disclaimer: There may be one or two states where something above is illegal (California, I’m looking at you). Some states make their own policies on this stuff, but in general, the above is true.

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{ 143 comments }

{ 143 comments… read them below }

  1. fposte*

    Subpoint on 3: “hostile work environment” does not mean that it’s illegal for people to be hostile to you at work, even if that’s what it sounds like.

    1. Jamie*

      This a thousand time, this.

      Between this and the myth that it’s illegal to give any reference outside of employment verification are the two that kill me because they are so ingrained in so many people.

      1. Lillie Lane*

        I just informed our HR-type person about this. I work for a very large university and apparently there is only 1 person who is allowed to verify employment. Our office manager was under the impression that my employer is only allowed to give out yay/nay employment info, but I pointed out that this is just policy and *not* the law.

        1. Jamie*

          I have had to educate more than one HR person on this as well.

          SHRM should have this in big black letters on their site somehow, because even HR is misinformed about this to an alarming degree.

    2. Del*

      I had a coworker in the call center where I worked with a “joke” picture up in her cubicle: a mug shot-style drawing of Dora the Explorer with a split lip, black eye, and cuts and bruises, with a caption of “arrested for illegal border crossing.” She was SHOCKED when someone pulled her aside to explain that that was really not an okay thing to have up at work (in a department that was mostly Hispanic, no less) and that she was creating a hostile work environment by having it displayed. She thought “hostile work environment” only meant how she treated people, not what she had up.

      1. Meg*

        Whattttt. That is super awkward and not at all funny. And mocking the idea of beating up a little girl (albeit a cartoon character) really rubs me the wrong way too.

        1. Jessa*

          Yeh, that’s wrong in so many ways. I can’t even stop to count them. It’s just incredibly not appropriate in an office.

          1. MELISSA*

            On the “bright” side, you know from now on what topics to avoid with this particular coworker. Sigh.

  2. Julie*

    Now that you have such a diverse readership, I might put a caveat somewhere that this only applies to the United States. In Quebec, Canada, for example, there is a legally mandated minimum vacation time. It *is* illegal here not to give your full-time employees vacation days.

      1. Jamie*

        It’s true that vacation isn’t mandatory here – that said I’ve never worked at a place where it wasn’t offered. As Alison noted in her answer, it’s something companies offer to be competitive. And even though not covered by the law itself, many employee handbooks clearly spell out how vacation time is handled.

        Companies offer vacation time because most companies are run by people who understand that productivity issues will arise if no one ever has any time to recharge but also because it’s something so commonplace that to not offer it would mean you’d be resigning yourself to accepting only candidates who have no other options.

        It doesn’t have to be legal to be available. A company doesn’t legally have to pay anyone over minimum wage, either, but they do all the time…because you can’t keep people in anything above an entry level position if they followed the bare minimum the law requires.

        It’s brought up all the time here that the US doesn’t legislate this like other countries, but that most companies offer it to full time workers anyway is a point that is often lost.

        1. Cat*

          First of all, I didn’t make any kind of policy argument. Someone said that this doesn’t apply in a part of Canada; I said that’s true of much of the rest of the world too.

          Second, nobody is disputing the fact that most people with in-demand skills and decent paying full-time jobs also tend to get vacation time. People who argue that it should be legislated are generally not focusing on those jobs any more than people who argue that the minimum wage should be increased are talking about people who make well over the minimum wage. It’s just not relevant.

          1. Jamie*

            The vast majority of full time workers have vacation time through their employer – not just those with in demand skills or even decent pay. I have worked in many manufacturing companies and even the most entry level non-skilled worker comes in with vacation time.

            I’ve truly not known one person in a full time job who didn’t get vacation time through their employer and I’ve known people in a lot of industries.

            I’m not trying to be argumentative and I didn’t say you were making a policy statement – just that it comes up a lot here that the US is different in this regard than other countries. Which is what you said, hence my reply to your post.

            It is relevant that the vast majority of full time workers in the US already get vacation time, because it shows that the lack of legislation isn’t preventing it.

            1. Cat*

              And I’ve known plenty of people working full-time jobs that don’t pay a living wage to begin with and who risked being fired if they took time off for being sick. If you don’t believe in legislating this stuff, fine, but let’s not deny the reality of the situation. Nobody has ever said that “most” people don’t get PTO; they’ve said the most vulnerable people don’t get PTO.

              And incidentally, entry-level manufacturing is usually considered a decent job. Part of the issue in this country, employment-wise, is popularly considered to be the decline of manufacturing jobs. Most people I know with those types of jobs consider themselves to be lucky.

              1. Jamie*

                Nobody has ever said that “most” people don’t get PTO; they’ve said the most vulnerable people don’t get PTO

                I was responding to your comment that in demand jobs which pay a decent living have vacation time and I was just making the point that the vast majority of people who get vacation time aren’t in high demand jobs and not everyone makes a decent living.

                The entry level manufacturing jobs I’m talking about make min wage or slightly above…so many are in an economically vulnerable position.

                I’m not going to argue this point further…but I’m not denying reality of any situation. The truth is the vast majority of people who work full time have some type of vacation or PTO even though it isn’t legislated.

                1. Cat*

                  Of course, let’s not forget that a lot of the people who don’t work full time in a single job are only not working full time because their employer doesn’t want to pay them benefits and thus keeps their hours under the full time threshold.

                  I don’t know what the percentage is. And yes, some people who aren’t highly skilled get vacation time. These days, though, jobs that are not highly skilled and which offer benefits, including PTO, are getting squeezed out. Much of the recovery in the employment numbers over the past few years has been in the service industry, where those benefits aren’t common. Entry-level workers in traditional blue collar industries, like, say, manufacturing or the utility industry might still get a decent benefits package. Someone waitressing probably won’t, and more or more people are now in the latter category, and the trends look to be continuing in that direction.

                  So maybe the “vast majority” of people working full time get vacation and sick time. I don’t know. But by and large, that’s not really the direction our society appears to be trending in and nor is it something people entering the workforce now without a set of in-demand skills should expect they’re going to get as a matter of course.

                2. fposte*

                  The figures seem to suggest that it’s roughly 90% of full time workers in the US who get some paid vacation; 35-40% of part time workers do. Unsurprisingly, the impact is disparate, with the 10% without vacation clustering at the lower-paid end of the scale.

                  It seems weird to me that more workplaces provide vacation than sick leave (75% of full-timers have sick leave, 27% of part-timers).

            2. Chinook*

              I agree with you Jamie – legislated minimums don’t mean that most companies only meet them. Wages higher than minimum wage, paid vacation/sick/pto policies, healthcare benefits, and matching retirement savings plans are all not legislated and available to most workers. Legislated minimums are what is required to make sure there are minimum standards for everyone. While I feel that mandatory sick leave should be legalized (if only for everyone’s health and sanity), everything else is a “nice to have” and not a necessity.

            3. Amy Lynn*

              Hi Jamie, pleased to meet you! I changed fields in 2005, have worked full time since then, and haven’t had a paid vacation day since 2004. No sick time, either. My Canadian and British cousins think I’m making it up when I tell them this fact, but it’s nothing but the truth.

          2. Chinook*

            I don’t know about other countries, but in Canada, vacation TIME isn’t mandatory, only vacation PAY. That means in practice that those of us who work in retail or as temps get paid an extra 6% for the inconvience of never getting to take time off. The reality is that government would have a hard time forcing people not to work but they can ensure that it costs the employer more if they want to overwork them.

    2. Felicia*

      IIRC in every province in Canada there is legally mandated minimum vacation time…i believe it varies by province but they all have something. Many of those “is it legal?” things only apply to the US. The thing about protected classes is mostly the same, I think,, except sexual orientation and gender identity is a protected class in all of Canada and in most of the US it is not a protected class.

      Does anyone know any good resources for understanding Canadian employment laws? Because I love that it’s on here, but hate that most of it doesn’t apply to me.

      1. KarenT*

        The laws vary by province, but if you are in Ontario, the Ontario Ministry of Labour website is extremely detailed. It’s also very searchable. They have a page listing a number of their publications as well.

        1. Felicia*

          Thanks! I am in Ontario so that’s very helpful:) I had looked at a bunch of other websites but found them confusing, and also hard to search, and searchable is important when I’m trying to look for only certain things. Sometimes wish there was a Canadian equivalent to AAM though:)

          1. KarenT*

            Check out their publications page–it’s searchable by topic, which is very helpful!

        2. Chinook*

          I want to add, as someone who has had to look into this in various provinces, every provincial government has information about labour laws which are, usually, easily readable. Quebec even has some of them in English!

          All provinces require you to be paid vacation pay but that is not the same as a company being required to give you time off. All the company is required to do is either accrue the vacation pay to be used to pay you during your vacation or to pay it you with you regular wages (and it must be clearly marked on your pay stub). When you leave a job, the accrued vacation pay MUST be included on your last pay stub.

          Also, vacation pay is on top of your hourly wages. This means that if you make min. wage, you are actually getting your min. wage + vac. pay on your pay cheque. It you make more than min. wage, the company is just cheap if they use the vac. pay to look like they are bumping up their hourly wage by including it (I am looking at you – my current temp agency – grrr!)

          1. Felicia*

            thanks for explaining it like that! I never really understood the parts that have said vacation pay on my pay stubs, and I’ve only worked part time or on campus or temp jobs before, so sometimes I feel like I have no idea what any of it means. It took me forever to understand that “at will employment” isn’t a thing here, and my friend is the first in my social group to be pregnant, so I recently learned that although our maternity leave is much more generous than what they have in the US, it wasn’t really like I assumed it was.

            1. Chinook*

              Yes, parental leave can be a real eye opener once people realize you are essentially going on EI for the year and that means a pay cut. On the plus side, some money is better than none, you don’t have all the expenses that go with being employed (work clothes, commute, lunches out, babysitting, etc)., your job is secure and you get enough time to see if you really would prefer to be a SAHP or a working parent while, at the same time, it is worth the employer’s time to hire someone to cover because a year is a long time.

              1. Felicia*

                Covering parental leave is also a great way for recent grads to get a foot in the door and get a year’s experience. I also didn’t realize they don’t have to keep exactly your job for you. They have to keep a job with the exact same pay for you but it doesn’t have to be the one you left. But taking a year off to take care of a baby and being guaranteed a job to come back to, even if it is a pay cut seems a lot better than how it works in the US. (also according to my research, if you’re in Ontario and if your income is below a certain amount, you get a bigger percentage of your pay. )

    3. AmyNYC*

      I’m very tempted to start a whitehouse(dot)gove petition to make paid vacation mandatory. Would you guys sign?

      1. Lillie Lane*

        While I would love to have paid vacation (none for me right now), my pro-small gov’t opinions outweigh that — so I wouldn’t sign. I bet you would get a lot of signatures, though!

        2. Zahra*

          Small government often means more abuse, in my experience, and not a more level playing field. However, after seeing the level of taxation in the U.S. and the few services you get from it, I can understand a tendency to want to downsize the government. You pay not much less than a Canadian and get much less in return (although our defense budget is much, much smaller, even accounting for the population difference).

          I’d be more amenable to right-sizing the U.S. government, by reducing the defense budget (and getting embroiled in less wars, because more wars means more ill-will from other populations which requires more “preventative” wars).

          1. EngineerGirl*

            Can we stop this misinformation now? Only 20% of taxes go to defense. The majority goes to social services.

            1. Zahra*

              And 8% of Canadian taxes go to Defense + 4% for public safety.

              Social Benefits (services):
              Employment insurance: 6%
              Support to elderly: 14% (biggest part of the pie)
              Children’s benefit: 5%
              Federal transfer to provinces: 10% for health and 4% “Social transfer”

              Altogether: 39% of our taxes go to social services and benefits.

              1. EngineerGirl*

                US:
                22% – social security
                21% – Medicare, Medicaid, CHIP
                12% – safety net programs

                A total of 55% for social services

            2. EngineerGirl*

              I would also like to point out that this includes protecting “the grid” (power transmission) against attacks, as well as protecting the Internet.

      2. AmyNYC*

        I’d be doing it for selfish reasons – my field is notoriously low on vacation days, and I’m sick of seeing friends take off random days on a whim when I have to plan a year in advance for a wedding.

      3. Mike C.*

        In a heartbeat. I especially love the fact that many food service workers don’t have paid vacation – I love the idea of getting sick because they couldn’t afford to stay home!

      4. VintageLydia*

        I’m on the fence about mandated minimum vacation time (or pay) but I’d be absolutely for mandated sick time. People shouldn’t be losing their jobs (which happens, I’ve seen it) because they happen to be human beings who get sick or get in a car accident.

        1. rlm*

          This is what I was thinking when I saw the original comment also. I have issues with forcing people to come into work sick for a variety of reasons. I also think it disproportionately impacts parents, especially single parents.

      5. MELISSA*

        No. I’m typically a bleeding-heart liberal, but I don’t think paid vacation should be mandatory. Actually, most of the things that Alison points out are very legal I think should be.

    4. Zahra*

      Actually, the U.S. is one of the rare countries where a minimum of vacation days/PTO isn’t mandated by the government. That’s why I was confused by:

      ” There’s a very small number of jurisdictions that require a certain number of paid sick days.”

      And, in Quebec, it is illegal to pay vacation wages without taking days off. The exception being when you leave your job (through lay off, being fired, leaving from your own accord, etc.).

        1. Zahra*

          It is confusing to say a very small number of jurisdictions require a number of sick days when 90+% of the world requires a minimum of some form of PTO or other. “A very small number of jurisdictions *in the US*” would be more accurate.

          1. Meg*

            AAM has made it clear a bunch of times that she only speaks to U.S laws and does not have expertise in other countries.

            1. Ask a Manager* Post author

              Yeah, this — I know people want to see it stated in every post, but I’m just not going to write that disclaimer every single day, sometimes multiple times a day.

              I’ve thought of adding something about it to the “about” page or something, although the vast majority of visitors don’t go there so I’m not sure it would help.

              2. Ruffingit*

                Put it as part of the title. “Ask a Manager. And if you don’t I’ll tell you anyway…ABOUT US norms, laws, and standards.” Or something like that.

                1. Min*

                  Surely it should be a given that an employment advice site would only refer to the employment laws of the country in which it is based!

              3. Melissa*

                No, I think most readers would assume that a U.S. based blogger could only reliably speak to the laws in the U.S., after all. And you do state repeatedly that people should check the laws in their jurisdiction because you can’t know the city and state laws of every workplace in the U.S.

          2. Lexy*

            I think Alison means that a small number of jurisdictions *within* the U.S. (e.g. cities, I don’t think any states do) require paid sick leave, but it is not federally mandated. Not that a small number of countries/global jurisdictions do.

            1. Lexy*

              nevermind.. I see you got there… sorry if that came off as condescending, I was trying to be helpful.

  3. Steve*

    I really like number 3. Number one is a pet peeve of mine. And I have an employee right now who really doesn’t believe number 5, but will eventually.

    But my favorite is number 3.

  4. Recent Diabetic*

    to point # 1: how would you know if you’re not being hired based on any of those categories from a potential employer? Unless the discrimination is blatantly systemic in the organization, how would I, as an interviewee ever know that I wasn’t hired because of my race, religion, marital status, etc etc. Of course the law, in principle, is obviously important, but how can its violation be addressed on an individual case basis? As a person of colour, I always wonder if any of those things have played into me not being hired, but I don’t have any way of concretely finding out about it.

    1. fposte*

      Unless they stupidly say something, you’re probably not going to know. I’m not a lawyer, let alone an employment lawyer, but most discrimination cases I’ve heard of are based on patterns or longer histories than just a hiring encounter.

      1. Sourire*

        Even if they said something, you’d have the burden of needing to prove it.

        *same disclaimer of not being a lawyer

        1. fposte*

          My guess is that while it’s not enough to prove it, it’s enough to report to the EEOC, which may know more about what’s gone on there pattern-wise than an individual job-seeker.

      2. Katie the Fed*

        as an example – this really happened at a former employer:

        A member of the selecting panel told a job candidate that one of the reasons she didn’t get the promotion she applied for was the selecting official finds women way too high maintenance in the work place.

        1. Chinook*

          A member of the panel actually said that? Was she giving her a heads up because it was wrong or letting her know that she shouldn’t bother trying to apply again?

    2. J*

      Unsure if your question is rhetorical, but I’ll assume it isn’t. Unless you’re given reason to believe otherwise, (during your interview for instance) you won’t know. You try and give them the benefit of the doubt that they are rejecting you based on your qualifications (or lack thereof) and your potential fit with the organization.

    3. Jamie*

      You probably won’t know. This is why it’s so important that the people who are in the position to make sure these laws are followed, do so. People on the insides of organizations can see patterns where one lone candidate cannot.

    4. Anonymous*

      You might. At least you might be able to draw some conclusions that EEOC might consider important enough to get an explanation from the company. For example, if you’re told they went with someone “more qualified” and you being over 40 with lots of great experience find out they hired someone right out of school. Basically, when you’re lied to and have some evidence (even circumstantial) that might raise some suspicion. You’ll never truly know until a credible someone actually investigates.

      Otherwise, you’re right. You’d mostly have to rely on circumstantial evidence like no diversity in a protected group.

      2. Ask a Manager* Post author

        And that’s one of the reasons some employers won’t give any feedback to rejected candidates — they don’t want to say “you needed more experience in X” in case they later end up hiring someone without more experience in X (but who was a better candidate in other ways); it opens up the door to these lawsuits.

  5. TheSnarkyB*

    So, as a disclaimer: I know nothing about how FMLA, disability, PTO, or any subcategory of any time of leave works. (I’ve never had a job with benefits. I promise I’ll learn it all at some point.)

    Is it illegal to ask whether someone is pregnant? I know that you can ask (but not factor) marital status and # of children, and that you can’t ask about disabilities. But how is pregnancy categorized with regard to that type of thing? (I.e. can an interviewer ask if someone is currently pregnant?)

    1. Chinook*

      “(I.e. can an interviewer ask if someone is currently pregnant?)”

      That has the makings of an awkward conversation:

      “So, are you currently expecting?’

      “Nope, I am just fat.”

      1. Chris80*

        Yep, that’s one of those questions I just don’t ask…ever. Body types can vary and it’s too easy to offend people by guessing wrong! I’d sure hope interviewers wouldn’t do it for those reasons alone.

    2. Ask a Manager* Post author

      Not illegal to ask, but illegal to make a hiring decision based upon it, so any reasonably savvy interviewer won’t ask. Plus, rude.

      1. Jamie*

        Yes, one of the rudest questions out there.

        Unless someone is asking for clean up on aisle 3 because their water just broke or the baby is crowning just wait for the mother to be (or not) to mention it (or not).

        1. Elizabeth West*

          clean up on aisle 3 because their water just broke

          Off-topic, but I knew someone that actually happened to.

          I never assume someone is pregnant (if they don’t tell me) even if they totally look it, until they show up with an actual baby.

    3. Sophia*

      Ugh. I’m going to be going on the academic job market in the fall and my husband and I are trying to conceive. If we’re successful, I’ll be pregnant during job talks but I’ve tried to time it so I’m “only” a few months pregnant and not showing as much. Not looking forward to “pregnancy brain” or anything else “extra” to deal with.

    4. Contessa*

      Everyone’s right, it’s not illegal to ASK, just to make the decision based on it (which is kind of weird to me, because pregnancy-related things can be disabilities under the ADA, and it is illegal to ask about disabilities before there is an offer–but no one ever claimed our laws are consistent and make sense).

      That said, I had a job interview last week at 38 weeks pregnant, and it didn’t come up. I don’t know if the interviewer honestly didn’t notice–it’s amazing what maternity clothes can hide these days–or if she just didn’t mention it to be safe.

  6. Anonymous*

    I think the follow-up to this is “it’s okay to be upset about something sucky even if it’s not illegal.”

    1. Jamie*

      Of course it is…if they ever start legislating what we can and can’t get upset about I’m going to be put away for life.

      1. Anonymous*

        A lot of the “is this legal” questions aren’t really about legality. The way the OP words them makes Alison’s answer often along the lines of “yes of course that’s legal.” Phrasing them as “does this sound bad/unfair to you” might get the a response along the lines of “no, that sounds awful.”

        1. Anonymously Anonymous*

          I would disagree. I found this blog during the first snow storm of the season last year, when my co-workers and I were told ‘oh by the way from this point forward your team will not get paid for snow days.’ Meanwhile other teams got paid snow days for the rest of the year. Plus i worked with a couple of people who are part of a union. So everyone saying how illegal and unfair it was made me think, ‘is it legal?’ While I certainly thought if was unfair, I also wanted to know was it legal?
          The year prior, they tried to change our contracts (end if 2 weeks early) but we pushed back and were allowed to stay.

          1. Anonymously Anonymous*

            * I wasn’t a lw. I found the topic (letter) talking about Hurricane Sandy and how the person didn’t get paid for the days they were out of their office…or something like.

          2. Chris80*

            I’d guess a lot of people find this blog by Googling “is it legal” questions. I know I did, except mine was about the legality of giving a negative reference! It’d be interesting to know what kind of search queries lead most people to AAM.

            1. Felicia*

              I found AAM because a friend recommended it to me:) Though I googled something about coworkers speaking a language you don’t understand all day long while you’re right there and how to deal with it, and one of the results was AAM even though I was already a reader. I didn’t think it was illegal, I just thought it was something that made me feel excluded (and I had no way of knowing if it was work related discussions), so I was glad to see this covered many times, and found the comments very helpful. I generally dont go here for my is it legal questions, because my questions only apply to Canadian law.

        2. P*

          Yep, I disagree too. I don’t think “does this sound bad/unfair to you” is really what the people are getting at, they really do want to know if they would have the potential to sue.

          At the very least, being able to go to one’s boss and say “what you’re doing is illegal and it needs to stop” is really what the person wants, rather than “a blog I read said what you’re doing is unfair and sounds awful”.

  7. fposte*

    And another thing (which is probably the subtext of this whole comments thread): discrimination and other employment laws have employee-number thresholds. Even when there is a law, that doesn’t guarantee the law covers your workplace.

    1. SevenSixOne*

      Yep. In many cases, if your workplace has <15 employees, if you have not worked a minimum number of hours and/or days, or if you are a contractor, you are outside the law.

  8. No name*

    I have had an employer ask me if I was married, and how many kids I have. He also asked me if I thought my “family” would get in the way of my work. It’s good to know he wasn’t breaking any laws. But it just felt weird after that point.

    1. Chris80*

      I don’t blame you, that’s a red flag for me. It’s just a weird question – and an unproductive one. After all, even if you *did* think your family would get in the way of your work, whether it’s unreliable daycare or a crazy ex, why would you say that in an interview? If a question can’t be used is hiring decisions and isn’t likely to be answered truthfully anyway, why ask it?

      1. Jessa*

        Yeh I mean it’s not illegal to ask, but it IS illegal to ACT on the answer really, if it impacts a protected class. So why would anyone put themselves in a position where they’d ask something they can’t USE.

  9. Lar*

    I want to start anwering any “is it illegal” HR question with:

    Yes, but it must be a citizen’s arrest executed by the victim using their best Gomer Pyle voice.

    1. Jamie*

      OMG – when Barney parked illegally and the crowd gathered?! I totally heard it exactly that way.

      Well done!! Thanks for the smile on a Friday afternoon.

  10. Discrimination?*

    I have a religious discrimination hiring hypothetical question (sorry this got to be so long!). Let’s say a candidate, due to his religious beliefs, believes that homosexuality and gay marriage are sins. This gets brought up in the normal course of the interview when the candidate mentions previous work experience with a known anti-gay marriage organization and then expresses that he is uncomfortable with openly gay people. The hiring manager the candidate would work closely with, who is openly gay and married, passes on this candidate because he thinks it will make the work environment uncomfortable and less productive.

    Is this considered religious discrimination against the job candidate, especially if the manager would hire someone of the same religion who did not hold those particular beliefs? Does it make a difference if the candidate did not express discomfort with openly gay people, but the manager is uncomfortable working so closely with someone who holds these beliefs?

    (I’m also looking at this as a hypothetical question, ignoring the practical likelihood that the manager would hire someone “more qualified” and that the candidate might choose to look elsewhere anyway. Let’s say that the candidate is not hired solely because of his stated discomfort and/or beliefs, he wants the job anyway, and he is fully aware that this is why the job was not offered to him.)

    1. Sydney*

      For hypotheticals like this, I tend to replace the possibly controversial part with something mainstream.

      If Candidate was religiously a racist, and Hiring Manager was a person of color, it would not be discrimination to pass on Candidate.

      1. Anonymous*

        One thing that I think might complicate this is that, in most states, sexual orientation and gender identity aren’t protected classes. That might affect whether the boss’s decision is seen as discrimination, or as a reaction to discrimination.

        (By the way, I’m queer and I have a pretty strong opinion on this, but my own opinions don’t have anything to do with how this would work out between other people.)

        1. Sydney*

          Right, I know. As much as you and I think there should be laws against discriminating based on sexual orientation, there’s not in many places right now, which is why this hypothetical is even a question. Because it’s obviously not discrimination to not hire a religious racist.

    3. Del*

      “I would be uncomfortable working with people who are X.”

      It doesn’t really matter what X is, that person will probably not be a good fit culturally. It has nothing to do with the person’s religious beliefs, and everything to do with their willingness to set aside personal differences and work professionally with other members of their team. If the candidate in question is willing to treat gay members of their department with courtesy and respect regardless of their (actual or assumed) sexual orientation, then that should not be a bar to hiring. If they imply or state that they do not want to work with those people, or that they would treat them differently than they would treat coworkers they perceive to be straight, then that is a red flag to the manager that this person is going to put their personal opinions ahead of their professionalism, and they will likely not be a good employee.

      1. Del*

        To expand a little: if the only information the candidate gave was, “I am a member of$Church” (and it is a church that has spoken up against gay marriage) then the hiring manager would be making a discriminatory decision, because they would be basing the decision solely on the candidate’s religious affiliation. That is not okay.

        Probably the best way for this hypothetical manager to handle the situation as you laid it out would be to say, “In this department, there are people who are openly gay and married to their partners. Will you be able to treat them with professionalism and respect?” If the candidate indicates that that will be a problem for them, out they go. If they are willing to commit to treating their coworkers fairly, then they should be given the opportunity to make a go of it. But they should be held, as everyone should be held, to the standard of treating their coworkers with appropriate respect.

        1. FD*

          I really like this response. It’s an excellent example of getting around a possibly discriminatory question by simply asking about what they need to be able to do on the job. (Just as you can’t ask a candidate if they’re disabled, but you can ask if they are able to stand for 8 hours a day, since that’s a major requirement of the job.)

          1. Del*

            I don’t even really see it as “getting around” a discriminatory question. The candidate’s beliefs are none of the hiring manger’s business. The candidate’s attitude and actions, on the other hand, ARE. So it’s the attitude and actions the manager needs to be assured of.

            1. FD*

              I agree with you, and I wasn’t entirely happy with the phrasing myself, since it sounds like the manager wants to discriminate while hiding it.

              I like the way you put it better. :)

      2. Chinook*

        “It doesn’t really matter what X is, that person will probably not be a good fit culturally. It has nothing to do with the person’s religious beliefs, and everything to do with their willingness to set aside personal differences and work professionally with other members of their team. ”

        This 100x. You can believe that I am a white she-devil who is goign to rot with maggots and deserves every bad thing that ever happened to me because I am a firm believe in the use of the Oxford Comma and there is nothing I can do , but the moment your beliefs effect what comes out of your mouth or your actions towards me, then it is effecting the work environment and the employer has the right (and responsibility) to step in.

        I was always taught that my rights end where someone else’s begins (except for the right to add a comma to clarify a sentence. I will fight for the death over that one!)

        1. Jessa*

          High five fellow Oxford comma-tarian. We must stand together. And your point is well made. I don’t care what someone thinks as long as they don’t bring it into the office and let it mess with the way they interact with me and our customers.

      3. FSP*

        This is a great way to put it and I think you really captured the problem without needing to couch it in discrimination/religion/etc. Good job!

      4. EngineerGirl*

        “I’m uncomfortable” is not the same as “I won’t”. Sometimes it is a matter of degree.

        You should also not assume someone’s beliefs based on what church they go to. Nor should you assume behaviors based on beliefs. That would be the same as assuming someone’s behaviors based on country of origin.

        1. Del*

          It isn’t just a question of “will or won’t” though. See what I said about treating coworkers with professionalism and respect. It’s about HOW they work with their coworkers.

          And honestly, thinking about the hiring manager’s perspective, I wouldn’t take the risk. Once someone indicates that their attitude toward their coworkers would be affected by a prejudicial judgment, even if it isn’t against a protected class, then hiring them becomes a really obvious potential problem for the team.

          And again, none of this is specific to sexual orientation or religious views thereof. Part of selecting the right candidate is selecting someone who will work as seamlessly as possible with the team, and the hiring manager would be crazy to pick someone they know ahead of time is going to have difficulty interacting courteously with other employees (unless that person brings something else to the table that absolutely blows every other candidate out of the water…. and even then, I think the hiring manager should be cautious).

          1. EngineerGirl*

            Or you could have a self aware person that is willing to be up-front and honest vs a discriminatory liar that will say anything to get a job.

          2. EngineerGirl*

            Also, “I’m uncomfortable” does not mean “I will treat those I’m uncomfortable with disrespectfully”.

            I’m extremely bothered by these extrapolations on how people with “a certain belief system” will act. I’m going to call it what it is – bigotry. Really, you need to talk to the person about it, and stop assuming based on belief / religion / origin / skin color / whatever. Because when you extrapolate you are crossing the boundary of acceptable and letting your own biases enter the picture. That is just as wrong as treating people disrespectfully.

            1. Del*

              Please go back and reread the comments I made.

              As I said above (in case you missed it before), if the hiring manger is only looking at the candidate’s membership in a certain organization, then denying them employment based only on that membership would be religious discrimination.

              If the candidate states openly that they are opposed to equal rights for certain people whom the manager knows are part of the existing team, and that candidate also states that they would be uncomfortable working with those already-employed team members (which is the hypothetical being presented here — again, REREAD), then NOTHING IS BEING ASSUMED. The candidate has stated their prejudices. And being prejudiced against certain people is not a protected class or belief.

              What if I told a hiring manager (who is herself very tall) that I am uncomfortable working with tall people? I would 100% expect her to end the interview right there, honestly.

              Please tell me what you would expect a hiring manager, or someone’s boss once they’re employed, to do with the revelation that this person is uncomfortable with other team members for personal reasons that have nothing to do with the function of the team. What rational reaction would you expect, other than “Suck it up; they’re doing their job and making no trouble for you.”

              Tl;dr: your prejudices have no place in the office. Period.

            2. Del*

              Also, to respond to your first comment, “Or you could have a self aware person that is willing to be up-front and honest vs a discriminatory liar that will say anything to get a job.”

              It is none of the hiring manger’s business what the candidate’s personal opinions are. If they are willing to keep them behind their teeth, they are free to think whatever the hell they want. If they feel the need to flaunt their prejudices, then they are a problem.

              If the candidate did keep mum in the interview, only to start blasting prejudice once they were hired, that would be grounds for disciplinary action. If the candidate kept mum in the interview, and then continued to keep mum on the job, then there would be no problem.

              At the end of the day, it is not about private beliefs that stay in your head. It is about the attitude you put out there in the workplace. Period.

              1. EngineerGirl*

                Then based on your analysis I would be disqualified from working with my openly gay c0-worker because
                * I believe what the Bible says about homosexuality
                * I believe what the Bible says about marriage
                Yes, I’m incredibly uncomfortable with homosexuality because I believe it goes against God’s word. People know what I believe. And I get along just fine with my gay co-workers. I’m decent friends with some of them. They know that I think its wrong. We’ve discussed it like adults. But you can’t seem to believe that people can’t hold wildly opposite view points and get along together.

                So very, very, very sad.

                1. Zahra*

                  “I believe what the Bible says about marriage”

                  Including the part about arranged marriage?
                  (See http://www.patheos.com/blogs/unreasonablefaith/2009/04/the-varieties-of-biblical-marriage/)

                  And the part that says “But I want you to understand that the head of every man is Christ, the head of a wife is her husband, and the head of Christ is God. Every man who prays or prophesies with his head covered dishonors his head, but every wife who prays or prophesies with her head uncovered dishonors her head, since it is the same as if her head were shaven. …” (If you go to church, do you keep your head covered during the prayers?)

                  Or marriage solely as a salvation from temptation?
                  “It is good for a man not to marry. But since there is so much immorality, each man should have his own wife, and each woman her own husband.”

                  Or more generally, quoted from a Huffington Post article:
                  “Let’s not even go into some of the Bible’s most chilling teachings regarding marriage, such as a man’s obligation to keep a new wife who displeases him on the wedding night (Deuteronomy 22:13-21), his obligation to marry a woman he has raped (Deuteronomy 22:28-30) or the unquestioned right of heroes like Abraham to exploit their slaves sexually.”

                2. EngineerGirl*

                  Yes, I do believe what it says.

                  But not what you wrote or referenced because it is taken out of context. A text without a context is pretext.

                  You can make anything sound wrong if you take it out of context as you have done.

                3. EngineerGirl*

                  BTW, if you really want to have an honest discussion about belief systems please let me know. I’m happy to discuss it. But if you choose to willfully take bible verses out of context, leave out other critical verses, ignore translational /cultural differences between english and hebrew then there can’t be any discussion. Because open communication involves honesty and openness, not playing “Gotcha!” by misrepresentation.

                  Let me know what you decide.

                4. Ask a Manager* Post author

                  BTW, if you really want to have an honest discussion about belief systems please let me know. I’m happy to discuss it.

                  Not here, please, on either side. Not the place. Thank you!

                5. Anon*

                  I can be friends with someone who has different beliefs or opinions than I do. I don’t think, though, that I would be able to be friends with someone who I felt was living life in a way I am fundamentally opposed to and think is morally wrong. I wouldn’t be being a very good friend by making that judgement-and it IS a judgement. If I were on the other side I wouldn’t be comfortable calling someone who felt that way about me a friend either. If you think someone’s very way of existing is wrong, you are not their friend just because you aren’t a nasty, hateful person who is rude to people use disagree with. You’re coexisting, which is nice, but is not being a friend.

                6. KellyK*

                  That’s not what Del said, though. If you allow those beliefs to affect the way you treat your coworkers, then that’s a problem. That includes making sure they’re aware you disapprove of their relationships. (To tie things back to today’s discussion, I wouldn’t assume they’re okay with such a conversation just because they don’t object. If you live in a state where orientation *isn’t* a protected class, that goes double.)

                  Now, I have no idea how or why your coworkers know that about you. Maybe it wasn’t that you made it a point to bring it up, but it randomly came up in conversation. Heck, I try to be extremely circumspect about my religious and political beliefs at work, but at least some of my coworkers know my feelings on same-sex marriage because I ran into them outside of work, in the next town over, when I was collecting signatures on the topic.

                  But I do think that it can affect working relationships even among people who think that they’re very politely and reasonably agreeing to disagree. There can be an attitude of judgment or contempt that colors every interaction, or someone can make it a point to express their disapproval every time Bob mentions his husband.

                  If I were hiring someone who’s anti-gay to work with established gay coworkers, that’s something I’d be concerned about and ask more questions about how they handle that at work to see if it’s going to be an issue.

        2. Melissa*

          No, they aren’t really the same thing. It’s well-established psychological fact that attitudes and beliefs influence behaviors, whereas there’s no evidence that national origin influence behaviors in any reliable patterns.

      1. Joey*

        What I would do is ask directly “are you making a religious accommodation request?” Yes=see above. “No”= “we don’t hire people that have a problem with other people’s sexuality.”

        1. Jessa*

          Exactly, just like you ask if someone needs a reasonable accommodation “Are you able to perform the duties of the job, etc.”

    5. Melissa*

      I think it’s a gray area. I personally don’t think it’s religious discrimination, but whether it’s considered that is going to depend on the commission/people who evaluate the claim, in the event that the applicant makes it.

  11. Anonymous*

    PSA: Sexual orientation and gender are not protected classes in most US states. Some people in my state don’t know that until they’re fired after someone at work finds out that they’re LGBT. If you’re LGBT and reading this, make sure you know how this works where you work.

    1. Anonymous*

      I believe there are 29 states where you can be fired for your sexual orientation (or suspected orientation), because it’s not a protected class in those states, and there are 34 states where you can be fired for your gender identity, for the same reason. As an LGBT person, although I’m Canadian, I’d never even consider living in those particular states unless/until that changes and my heart goes out to those who live there.

      1. Joey*

        There are some court cases that consider sexual orientation discrimination to be gender discrimination. In other word they’ve interpreted that gender discrimination includes discriminating against a gender that acts or looks differently than you believe they should.

      2. Elizabeth West*

        Yes, and it needs to stop. I think eventually it will. Change is good and it’s coming, but it’s sloooooooooow.

        Case in point: I was reading one of those “Stupid politician argues that gay people [insert idiotic thing here]” articles online the other day, and the comments were overwhelmingly scathing toward the politician. Not long ago, they would have been supportive.

        People should not have to worry about being fired because of immutable characteristics.

      3. SCW*

        While some states don’t consider either a protected class, some counties and cities do. I live in a super duper conservative state, but the county and city I live in do consider gender and sexual orientation to be protected classes.

        1. Jessa*

          And that is the lunacy in the US. You have laws that count all the way down to the town level. And they’re DIFFERENT. Crazy much?

            1. VintageLydia*

              When it comes to civil rights, I agree with Jessa. It is lunacy. Protecting a minority from oppression isn’t group think.

  12. Anonymous*

    Any question that asks a candidate to reveal information about such topics without the question having a job related basis will violate the various state and federal discrimination laws,” Lori Adelson, a labor and employment attorney and partner with law firm Arnstein & Lehr, tells Business Insider

    During job interviews, employers will try to gather as much information about you as possible, mostly through perfectly legal questioning, but sometimes through simple yet very illegal questions.

    It’s up to the interviewee to recognize these questions for what they are.

    Any questions that reveal your age, race, national origin, gender, religion, marital status and sexual orientation are off-limits.

    “State and federal laws make discrimination based on certain protected categories, such as national origin, citizenship, age, marital status, disabilities, arrest and conviction record, military discharge status, race, gender, or pregnancy status, illegal..

    “However, if the employer states questions so that they directly relate to specific occupational qualifications, then the questions may be legitimate. Clearly, the intent behind the question needs to be examined.”

    If you are asked any inappropriate questions, Adelson advises not to lie, but, instead, politely decline to answer.

    “Could they not give you a job because of that? Sure. But if they do, they would be doing exactly what they’re not supposed to do.”

    We compiled the following illegal interview questions that are often mistaken as appropriate from Adelson and Joan K. Ustin & Associates, a consultant firm specializing in human resources and organization development.

    1. Ask a Manager* Post author

      That’s just not correct. Take a look at the law and you’ll see there’s no law prohibiting the asking of the questions (with the exception of disability), only making a decision based on the answer. As a result, lawyers of course advise you not to ask them at all, but it’s not against the law to do so.

      I wouldn’t be surprised if the reporter incorrectly interpreted what the lawyer told her, since I see that in articles on this topic all the time.

      1. Grace*

        We were always told that the burden of proof that they did not discriminate was on the company’s side.

        In other words, the company had to prove they didn’t discriminate. So, if they asked these questions, it can look very much like those protected issues had to have had some weight on the hiring processes – which is why it’s not ILLEGAL to ask, but it’s really bad to ask.

        Is that true? (as far as the burden of proof issue)

  13. Gilbey*

    This is a great post !

    Not too long ago a FB friend was being given really bad advise regarding her termination from a job. People were telling her to SUE for wrongful termination!! They told her…. ” THEY can’t say anything about you at all as a reference other than dates of service that is ILLEGAL !” ” CALL an employment lawyer get that company but good !! ” And who knows what else they were telling her to do.

    I was yelling at the posts saying.. ” Most likely you don’t have a leg to stand on”. But who wants to listen to that. It is more fun to believe you are going to be a millionaire by with a lawsuit.

    So she calls a lawyer and yeah,,, well… you know the answer…..

    Again… great post.

  14. ChristineSW*

    I think it’s interesting that disability is the only thing interviewers can’t legally ask about. I assume it’s because it’s under an entirely separate law? (The only ones I’m familiar with are the ADA and, to a much lesser extent, the Civil Rights Act).

  15. rlm*

    Question re: #5 (It’s not illegal to reassign you to different duties or even a whole new job). Is it accurate to say that there is an exception to this rule if the employee is on covered FMLA leave?

    1. Ruffingit*

      A good guide to FMLA: http://www.dol.gov/whd/fmla/employeeguide.pdf

      According to the above guide, “When you return to work, the FMLA requires that your employer return you to the same job that you left, or one that is nearly identical.”

      Special Circumstances (also from the guide above):

      “Key” employees
      Certain “key” employees may not be guaranteed reinstatement to their positions following FMLA leave. A “key employee” is defined as a salaried, FMLA-eligible employee who is among the highest paid 10 percent of all the employees working for the employer within 75 miles of the employee’s worksite.

      Teachers
      Special rules apply to employees of local education agencies.
      Generally, these rules apply when you need intermittent leave or when you need leave near the end of a school term.

      1. EngineerGirl*

        Key employees are identified prior to going on FMLA. Also the return job just can’t be the same salary grade. It has to be essentially the same. So status, responsibility, number of people supervised, job duties, etc all need to be very close.

        1. rlm*

          Thanks for the info Ruffingit and EngineerGirl! That was what I thought, but didn’t want to be one of those that misinterpreted what’s legal and what’s not :)

          1. Ruffingit*

            I’m glad you asked rlm!! I am all for getting clarification rather than just assuming or thinking something is/isn’t legal.

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