Q:  My wife interviewed for a job recently and I was amazed that one of the questions she was asked by the interviewer was “Do you have any children?”  We do, but what does that have to do with her qualifications for the job?  Plus, I thought it was illegal to ask those questions. 

A:  Actually, it is not technically illegal to merely ask the question.  What’s illegal is to base a hiring decision on the answer to the question.

So let’s say your wife doesn’t get the job.  She could now claim (rightly or wrongly) that it was because the interviewer knew she had kids and the company might have assumed that she’d miss more work (because kids get sick), or it might be more expensive to add her and the children to the company health plan.  Both those reasons are discriminatory, and if in fact they were used to exclude her from employment, it would be illegal.

However, it’s also possible that there was a lawful reason why she didn’t get the job.  Let’s say they simply found a better qualified candidate.  But even if the company did nothing wrong, they are now in a messy and expensive situation of having to defend their hiring decision –a position they wouldn’t be in if the interviewer had not asked the question in the first place.

This is why a well-trained interviewer will avoid asking those types of questions.

So, why ask the question at all?

Yes, it’s possible they wanted to discriminate.  But what’s more likely is that your wife met with a well-intentioned, untrained interviewer who was simply trying to be friendly and put her at ease (people with kids easily relate to others with kids), without realizing they were taking a legal risk.   This is especially true if she interviewed with a smaller company, one that hires occasionally, whose interviewers have little experience.

NOTE to employers: You can always find a lawful way to ask an applicant what you want to know.  For instance, if you’re concerned about hiring someone who wont be able to work late on short notice, don’t ask them if they have kids and assume that’s a problem.  Just ask them:  “You may need to work late on short notice, is that something you’ll be able to do?  Period.  See how easy that is?

© Copyright Eva Del Rio

Eva Del Rio is a human resources consultant, columnist and creator of HR Box – tools for small businesses under 49 employees. Send questions to Eva@evadelrio.com