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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I received a questionnaire via email for a VP of Sales job.

Customer Question

I received a questionnaire via email for a VP of Sales job. The questionnaire has 20 questions about my background and expertise. However, some of the questions include the following:

1. How old are you?
2. Where do you live?
3. What is your nationality?
4. Are you married?
5. Do you have any children? If so, how many?

I am unemployed and need a job, but I thought these questions were illegal, and I don't know if I should answer them or not.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.

Good morning Tom,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

1. Is this a job that you applied for---or just a cold-call email you received out of the blue?

Doug

Customer: replied 1 year ago.

It is an initial email that I received from a recruiter who has been hired by the company to fill the VP of Sales role. In addition to the questions I received, the recruiter sent me a job description as well.


 


What I also found strange about the questions is that he prefaced asking them in the email by first saying... "With your approval, I would appreciate you answering the following questions" as if to say he knows the questions are illegal but is seeking my approval to answer them.


 


Should I or should I not answer them?

Expert:  LawTalk replied 1 year ago.
Good morning Tom,

I am trying to determine whether this email is just a hoax, or whether id is on the up and up, from a legitimate recruiter working for a legitimate employer----which is why I specifically asked: Is this a job that you applied for---or just a cold-call email you received out of the blue?

Is the recruiter someone you were already working with. How did they know you were looking for a job? Did you post a resume online somewhere where anyone can get your contact information?

I can certainly respond to the legality of the questions---but I want to determine first whether this is just a hoax job offer you are dealing with.

Doug
Customer: replied 1 year ago.

Often, recruiters whether they work for the hiring company or have been retained by the hiring company will see your Linkedin profile or find your resume on a resume job board like Monster or Careerbuilder and send you an email if they think your background matches a job they are trying to fill. In my particular case, the gentleman works for a recruiting firm retained by another company. I connected with him on Linkedin, and the recruiting firm he works for is a publicly traded company so everything is legitimate.


 


Tom

Expert:  LawTalk replied 1 year ago.
Good morning Tom,

Well, the fact that the questionnaire comes through channels that seem legitimate---keeping in mind that fraud can occur as easily on Linkedin as it can on Facebook or Match.com-----the real issue here is that of the 5 questions that you have set out, four are patently illegal to even ask in a pre-employment situation in the US. Asking where you live is lawful.

If you want to apply for the job, then feel free to answer them. You are violating no law by doing so. Keep in mind that the company submitting the questions to you may well be entirely bogus, because few companies, and especially few recruiters, in this day and age would actually violate so many federal laws. This is because any person responding to these questions that is not hired could file a discrimination claim with the DFEH and the EEOC and very well win a discrimination lawsuit against the company.

You have little to lose by answering the questions if you want to apply. But if the employer is willing to violate these laws, don't expect them to abide by the remainder of the employment laws which are there to protect you, if and when you are hired by this company.

And if you wonder about the DFEH and the EEOC---technically you can file a complaint right now based on the discrimination patent in the questionnaire, you file such a complaint if you wish.

CA law prohibits harassment and discrimination in the workplace, as well as the hiring process, and if this is happening to you, you do have a legal remedy.

Workplace harassment/discrimination is any unwelcome or unwanted conduct that denigrates or shows hostility or an aversion toward another person on the basis of any characteristic protected by law, which includes an individual's race, color, gender, ethnic or national origin, age, religion, disability, marital status, sexual orientation, gender identity, or other personal characteristic protected by law. A conduct is considered unwelcome if the employee did not solicit, instigate or provoke it, and the employee regards XXXXX XXXXX as undesirable or offensive.


In CA you have two possible avenues of approach to dealing with discrimination. If your goal is to ultimately sue in Federal Court, then you will file a complaint with the EEOC, and if you want to be in the CA Superior Court---local to your county---then you will file with the DFEH and, if you want to, with the EEOC as well. You must file a formal complaint of discrimination with the EEOC within 300 days of the alleged discriminatory act, and within one year for the CA DFEH.


You may file a formal complaint with the CA Department of Fair Employment and Housing alleging discrimination based on your age, nationality, and marital status.

To do this you must first make an appointment with the Department to be interviewed, either over the phone or at a local DFEH office. You may call the DFEH at(NNN) NNN-NNNN or apply on line by using the Department’s "Online Appointment System." The system will guide you through questions to determine whether an appointment is right for you.

Alternatively, you may file a complaint with the EEOC (Equal Employment Opportunity Commission). If your company has 15 or more employees (the DFEH only requires that there be 5 or more employees), they are prohibited from discriminating against you. To file a complaint with the EEOC, contact the nearest Equal Employment Opportunity Commission field office. To be automatically connected with the nearest office, call(NNN) NNN-NNNN EEOC website: www.eeoc.gov

Federal law specifically prohibits discrimination, based upon the Ethnicity, Color, Religion, National Origin, Age, Sex and Disability of an individual, with regard to hiring, promotion and firing.


After you file the complaint, your employer will be prohibited from any retaliatory action against you. The EEOC will investigate your claim, and 180 days after the filing of the complaint you may ask for a "right to sue letter". The EEOC will issue you the letter which gives you the right to institute a private civil action against your employer and seek monetary damages.


You may reply back to me using the Continue the Conversation or Reply to Expert link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,

Doug
Customer: replied 1 year ago.

One more question...


If I answer the questions but my application is not given further consideration, it would appear to me that I would be in a better position to potentially take legal action (I'm 48) as opposed to not responding to the questions at all and trying to take legal action. Would this be correct?

Expert:  LawTalk replied 1 year ago.
Good morning Tom,

I would have to agree with you on that issue---yes. Clearly being denied a job following these unlawful questions would provide the basis for greater damages in a resulting lawsuit.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug
LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service, Tom. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

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