Dear Legal Mailbag:
As the principal of a middle school, I was pleased to interview candidates to succeed my long-serving, low-energy assistant principal who finally made his retirement official. The HR department gave the members of the interview team specific questions to ask, cautioning us to stick to the script for some legal reason.
At the beginning of the first interview, I had my prepared questions in hand. However, as it turns out the candidate was a fellow UCONN alum, and I admit that I got a little excited. When it came time for my first question, I told the candidate proudly that I graduated from UCONN as well, and I asked her when she graduated. She readily answered my question, but I was quite surprised when she told me that she had earned her degree some ten years before I did. “Wow,” I exclaimed, “You don’t look that old! Do you work out?”
The candidate answered with “Not really,” followed by an awkward silence. We concluded the interview and interviewed three others, and as it turns out, the interview team decided to recommend a different candidate. But the HR department sent me a nastygram, chastising me for going off script and “putting the district at risk.” What risk? I was just being friendly!!
By your being “friendly,” you put the district at risk of having to defend against a claim of age discrimination. Discrimination against prospective employees is prohibited on the basis of a number of protected characteristics, including age, sex, race, religion, national origin, ancestry, marital status, sexual orientation, gender identity or expression, veteran status, genetic information, and disability, and employment decisions should be made without regard to such issues. Here, you asked an age-related question, and you compounded your faux pas by specifically noting how old the candidate is.
Such questions can cause problems because discrimination claims are often decided without any direct proof of discrimination. Many years ago, the Connecticut Supreme Court described the problem: “One who indulges in discrimination does not usually shout it from the housetops. All too frequently persons publicly announce abhorrence of racial prejudice while privately practicing it.” Reliance Insurance Company v. CHRO, 172 Conn. 485 (1977). Accordingly, the courts will draw inferences from words and actions to determine whether illegal discrimination has occurred.
The hiring process often gives rise to discrimination complaints, and those complaints are typically decided by drawing such inferences. It is not illegal per se, for example, to ask a candidate how old he or she is. But such information is (or should be) irrelevant to the hiring process, and the Connecticut Commission on Human Rights and Opportunities or the Equal Employment Opportunity Commission would be ready to infer that such a question was asked for an improper, discriminatory purpose. It is therefore important that administrators, teachers, parents or anyone else involved in the hiring process be aware of discrimination prohibitions and avoid questions that elicit information about a protected status.
The HR department gave you scripted questions to ask of all candidates to reduce the likelihood that a candidate with a protected status would claim discriminatory treatment. In the interest of a robust interview process, follow-up questions are fine, but interviewers must be careful not to elicit information about a protected characteristic, such as age or disability.
Indeed, recent legislation underscores the interest of the General Assembly in protecting prospective employees from age discrimination. Effective October 1, 2021, Public Act 21-69 makes it a discriminatory employment practice for employers, including boards of education, to request or require a prospective employee to provide information on an initial employment application that would reveal his or her age, such as date of birth or dates of attendance at or date of graduation from an educational institution. Your interest in knowing when the candidate graduated was understandable, but you should not be asking such questions in an initial interview.
Originally appeared in the CAS Weekly Newsletter.