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Interviewing for a new job was stressful before the pandemic.  Post-COVID, some forms of discrimination may become more pervasive, and it is critical for prospective employees to understand their rights and the remedies available if they experience discriminatory behavior during an interview.  If you are interviewing for a new job or a new position during the COVID-19 era, your prospective employer is not allowed to ask you discriminatory questions.  The following are specific issues that prospective employees may face when interviewing during the coronavirus pandemic that may involve violations of state and federal law. 

Are you a Mom? 

If you identify as female, and you are being interviewed for a job during the COVID-19 pandemic, be aware that there are specific state laws that prohibit employers from asking certain questions during your interview. Most significantly, employers may be designing interview questions to determine whether a woman is a mother, with the aim of determine what the prospective employee will do with their children in the event of remote learning, or how they will provide childcare if they are required to return to work in-person. Under Massachusetts law (MGL 151B), it is unlawful to engage in gender stereotyping, which amounts to sex discrimination.  Gender stereotyping occurs in this context when a prospective employer makes assumptions about a candidate because of her gender (i.e., that women are more engaged with child-rearing and accordingly, will not focus on work).  Employers should not ask female candidates certain questions about family, such as:

  • Do you currently have children?
  • What are the ages of your children?
  • If you have children, are you married?
  • What type of childcare arrangements are you currently using, or do you plan to use?
  • Does your spouse or partner also work, or does that partner or spouse provide childcare?

Do you have children with disabilities?

According to the Massachusetts Supreme Judicial Court, the Massachusetts Fair Employment Practices Act (FEPA) also can prohibit “associational discrimination,” which is discrimination against an employee or prospective employee based on another person with whom the prospective employee associates.  Whether this can apply to an employee who has disabled children has not yet been determined by the SJC.  Nonetheless, this point is relevant for prospective employees who are asked questions about having special needs children or children with an Individualized Educational Plan (IEP) out of concern that parenting duties for these kids could be a reason not to hire the employee during the COVID-19 era. These kinds of questions may amount to associational discrimination.

Are you an older worker?

A prospective employer cannot ask questions about your age with the intention of delaying a work start date, deciding not to hire you, or withdrawing a job offer due to COVID-19 risks. While the U.S. Centers for Disease Control and Prevention (CDC) has identified people aged 65 and older as being at higher risk for severe COVID-19 illness, that identification “does not justify unilaterally postponing the start date or withdrawing a job offer,” according to the U.S. Equal Employment Opportunity Commission (EEOC).

The Age Discrimination in Employment Act (ADEA) and state law (MGL 151B), specifically prohibit age-related discrimination against employees or prospective workers aged 40 and older. 

Are you pregnant?

Prospective employers cannot ask prospective employees if they are pregnant or planning to become pregnant. Such questions violate the Pregnant Workers Fairness Act in Massachusetts law, along with previously mentioned Massachusetts laws that protect against workplace discrimination. Interview questions concerning pregnancy also violate federal law, including  Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act (PDA), which amended Title VII.  Although the CDC recognized that pregnant women may be at greater risk of COVID-19, that alone does not justify unilaterally postponing the start date or withdrawing a job offer.

Do you have any disabilities?

The Americans with Disabilities Act (ADA) also provides a variety of protections for prospective employees who are interviewing for jobs in Massachusetts. Some conditions that make a person more susceptible to a severe COVID-19 infection may qualify as a disability under federal law. It is important to know that prospective employers cannot ask prospective employees to reveal disabilities during an interview, and they cannot ask all applicants about their need for reasonable accommodation (such as telework during the pandemic) in order to determine whether the prospective employee has a disability.

Remedies

Depending on what happened during the hiring process, you may be able to recover monetary damages for the harm you have suffered.  In some cases, you may also be entitled to compensation for emotional distress or punitive damages.

Seek Advice from a Massachusetts Employment Law Attorney

If you recently applied for a job and believe you experienced discrimination in the hiring process, it is important to seek advice from a Massachusetts employment law attorney as soon as possible. You may be eligible to file a claim. During the COVID-19 pandemic, certain forms of discrimination may become more pervasive, and it is critical for prospective employees to understand their rights and the actions they can take if they do encounter discriminatory behavior from a potential employer. Contact Rodman Employment Law online or contact our firm by phone at 617-820-5250 for more information about prospective employee rights during the COVID-19 pandemic.

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