What to do when someone asks an illegal interview question

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“So, are you married?” It may have been an innocent question by someone else on the interviewing panel but HR professionals will know it’s off-limits – so what do you do? – speak up or keep schtum?

“I would let it slide,” admits Vancouver-based employment lawyer Martin Sheard. “It’s more of a red flag if you go; ‘Woah, woah, woah, John we can’t ask this person that.’”

Sheard, who part-owns Tevlin Gleadle Curtis, acknowledges that asking the question is contrary to law but says the risk is relatively low for employers.

“I think the right thing to do if your co-panellist asks a question like that is to play it cool – not least of all because these claims don’t usually get off the ground,” he told HRM.

Sheard says that, while it’s not uncommon for failed applicants to approach him about being asked an illegal interview question, very few have a case worth pursuing.

“When someone comes to me with a story like that I basically say there’s just no case and they shouldn’t pay me to try and fight it,” he admits.

“There’s not much of a risk even though it might be offside to ask if they’re married or planning children,” he adds. “It doesn’t really turn into trouble in all but the most improbably circumstances.”

However, Joseph Campagna – founder of My Virtual HR – said HR managers should speak up if they see a colleague do something unorthodox.

“If you are in an interview with a colleague who asks an inappropriate or even illegal question, the best thing to do is correct it immediately,” he told HRM.

“Don't just butt-in or change the subject,” he continued. “It's important to make the statement that it has no bearing on their selection for the position. If you don't, you leave that open as a liability.”

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  • HG on 2016-06-16 9:23:29 AM

    Pretty well every HR leader that I know has faced this issue. When that happens in front of me I immediately tell the candidate not to answer the question, pause the interview and step outside with the interview panel and instruct them again on why we are following the set questions with each applicant. I see these moments as value add opportunities for HR and I get to do a little direct teaching with the managers involved.

  • Neena Gupta on 2016-06-16 9:42:49 AM

    BEST TIP GIVEN TO ME BY A HUMAN RIGHTS COMMISSION LAWYER: If you are a panelist and you hear questions that are off-side, you should interject (gently), "but we digress and we really need to focus, since our time together is so short." You can use it when you hear yourself going off a tangent too!

    Later on, you can advise your co-panelist that certain questions/discussions are off limits. I remember when one of my co-panelists was fascinating by an Arab Christian candidate and her life story, none of which was relevant to her qualifications for the job. I know that there was no consideration given to her origin/religion, but I still wonder whether she felt differently at the end of the day when we didn't offer her a position.

  • Jeannie McQuaid on 2016-06-16 10:04:10 AM

    I don't often interview in "panel" and it's never happened to me, but I think I'd be inclined to jump in and tell the applicant something like "You don't have to answer that question if you don't want to. It's not going to impact our decision on your qualifications."
    Enlightenment of co-interviewer would follow after the interview.

  • Henry Lowi on 2016-06-20 11:15:39 AM

    As a co-panelist I would do what I advise interviewees to do: Translate the offending question into a legitimate question: "What we really want to hear about is your availability to start work at 8 am, and do occasional overtime as needed." I would not "gloss over" an illegal question, nor confront it directly.

  • Henry Lowi on 2016-06-20 11:18:20 AM

    By the way, the offending question is usually not "Are you married?" Human rights standards are pretty widely acknowledged. It's usually more like "How do you manage day care?"

  • Hg on 2016-06-20 8:23:10 PM

    If HR does not hold people accountable when confronted with less than desirable behavior and maintain profession standards then I am at a loss as we ask that of our business partners.

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