What to do when someone asks an illegal interview question

A member of the hiring panel has posed an off-limits question – so do you speak up or keep schtum? One employment lawyer weighs in.

What to do when someone asks an illegal interview question
“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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