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Davis Brown Employment and Labor Law Blog



Try Not to be so Friendly: Current Issues in Interviews and Advertising - June 27, 2017

Many of us like to chat.  We like to know what you’re reading, how your kid’s baseball season is going, and what kind of pie you like, but while hostesses love you at a cocktail party, chatting can lead to trouble, especially in the interview process.  We all (hopefully) realize questions like, “Are you married?” are not acceptable, but some recent trends in advertising and interviews go further to limit what you can ask. 


Age discrimination

In Illinois, the Attorney General’s office is investigating various job websites for age discrimination.  Several automated posting sites had limitations on the amount of prior work experience applicants could submit.  For an applicant who had 25 years of experience, he could only list 10 in the limited data fields allowed for applicant information. 


Inability to be fully accurate in these areas, such as number of jobs or experience levels, could detrimentally affect those with more experience, who are presumably older than those with less experience, which gives the AG’s office motivation to investigate the age claim.


This concern also applies to ads themselves.  If an employer limits experience in an ad to “three to five years experience,” this could be seen as disqualifying experienced older employees resulting in age discrimination. Shifting ads to minimum experience, “3 years minimum,” with no maximum experience level would address this issue. Employers should also check online application portals they use to make sure employees can list all their pertinent experience.


Salary history

Several states are also considering legislation that would ban inquiring into prior salary history.  The basis for this is equal pay concerns and the historical differential in women’s pay compared to men’s.  If a woman’s pay at a previous job was lower due to sexism, asking about prior salary perpetuates the low rate and institutionalizes someone else’s discriminatory decisions. 


However, pay rate history does have a purpose. It is normally asked to see if and where an applicant would fit into your scale.  It’s very disappointing to go through the arduous process of full interviews only to be told the pay is too low.  Methods to address this could include asking the expected pay range or publishing to the applicant your existing range and any factors that go into pay differentials, such as licensure or experience.


Next steps

Think carefully about what you want in an employee and think about how you elicit that information fairly.  Train your interviewers/supervisors to avoid obvious, and not so obvious, issues and mistakes.


For a more comprehensive look at anti-discrimination practice is employment advertising and hiring, see our advertisement blog post from last summer or interviewing post from last fall