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A job interview is a stressful situation. Even a well-prepared candidate may be surprised with an unexpected question. Should you answer all questions during a job interview? What should you do when a questions is illegal? Who bears the burden of proof in employment discrimination cases? Katarzyna Antolak-Szymanski, Ph.D., from the School of Law at SWPS University explains what kind of mistakes and illegal practices may occur during a job interview.

The range of personal information that a candidate must provide to the employer and the type of interview questions that an employer may ask are regulated by law. According to the provisions of Article 221 Section 1 of the Polish Labor Code the employer has the right to ask for personal information, such as name(s), surname, parents’ first names, date of birth, home address, mailing address, history of education and history of employment. Additionally, Section 4 of the Labor Code states that an employer may ask the candidate to provide additional personal information should this be required under other regulations.

Sometimes, employers acquire additional personal information from candidates, once candidates have signed an appropriate written agreement. Decisions of the Supreme Administrative Court1 clearly indicate, that candidates’ agreement to have their personal information administered by the employer, does not give the employer the legal right to ask for personal information other than data indicated in Article 221 of the Labor Code and that such conduct would constitute a breach of this regulation.

Questions related to marital status, personal goals, religion, political views, candidate’s health, addictions and other questions invading candidate’s privacy are illegal and should not be asked during the interview not only because they are not related to candidate’s qualifications, but also because they infringe on personal rights of the candidate.

Religion, Politics, Ethnicity, Nationality, and Sexual Orientation

Questions asked during the recruitment process should pertain to the job that the candidate is applying for and the corresponding education and competences. Polish labor law forbids employment discrimination and the same regulation applies to the recruitment process. Article 18 of the Labor Code states: “Employees should be treated equally in relation to establishing and terminating an employment relationship, employment conditions, promotion conditions, as well as access to training in order to improve professional qualifications, in particular regardless of sex, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, creed, sexual orientation, as well as regardless of employment for a definite or indefinite period of time or full time or part time employment.”

Therefore questions related to marital status, personal goals, religion, political views, candidate’s health, addictions and other questions invading candidate’s privacy are illegal and should not be asked during the interview not only because they are not related to candidate’s qualifications, but also because they infringe on personal rights of the candidate. Pursuant to the Labor Code, employer may ask how old the candidate is in the context of candidate’s identification. This is especially important when candidates are underage (younger than 18), because employment of minors is strictly regulated by labor law. However in general, the employer should make hiring decisions based on merit and not on factors such as candidate’s age.

Discrimination and Lack of Objectivism

Interview questions related to personal information, which go beyond the framework established by the Labor Code indicate that he or she is not following the law and may base his or her hiring decision on factors other than the objective assessment of candidate’s competencies. Questions related to the marital status, family situation, and candidate’s views may lead to discrimination of the candidate, based on criteria that have nothing to do with the job.

A candidate applying for a job is not obligated to answer questions, which constitute a breach of the labor law, including potentially discriminating questions. Providing a false answer is not a god solution either, however it is not considered a breach of the law. From the court’s perspective, concealment of information related to candidate’s personal plans, views or religion is treated as a kind of self-defense against discriminatory behavior on the part of the employer.

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Pregnancy and Children

It is important to note that the ruling by the Supreme Court of the Republic of Poland2 states that during the recruitment process, women are not obligated to inform the potential employer about their pregnancy, unless the nature of the job implies risk for expectant mothers. Information about pregnancy is considered to be sensitive personal information and the employer has no right to demand it. Moreover, the employer who is requesting this type of information may be accused of infringing on personal rights of the candidate or of breaching the non-discrimination regulation.

Often, the illegal questions are related to the family situation, the number of children or future plans of having children. Usually, these type of questions are addressed to women, but sometimes men are also faced with this type of inquiry. Sometimes, employer is looking for employees who have family obligations, in the hope that employees would not quit easily. In this case, single or childless candidates may experience discrimination.

Criminal History

Questions about candidate’s criminal history are also illegal, although the law clearly defines exceptions to this rule. An employer may request that a candidate provide a certificate of no criminal record, obtained from the National Criminal Register, but only during the recruitment process, not when the person has already been hired, and only in situations when the specific regulations stipulate that candidates for the position in question must have clear criminal record. For example, professions that are closed to candidates with criminal convictions include government administration, police, security, military and firefighters.

How to answer non-standard interview questions?

How should a candidate behave when they are asked a non-standard interview question or a question that is not related to the recruitment process. If the question is polite, fits the social norms and is not too personal, the candidate may try to answer the question. For example, questions such as: “What is the difference between a politician and a detergent?”, “How many windows there are in all buildings in Gdańsk?” are not against the law, providing they do not breach the employment discrimination regulations. A candidate who was asked to answer questions of personal nature during an interview, may sue for damages resulting from the infringement of personal rights, pursuant to Articles 23 and 24 of the civil code.

Many people are not aware that questions related to candidate’s property and ownership are illegal. The employer may ask whether a candidate owns a vehicle or an internet connection, if these items were listed among job requirements in the job posting. This type of question is justified in some cases, for example a delivery driver might need to have a vehicle and a writer/editor working remotely would need to have access to the Internet. However, when a job posting does not list specific equipment as a requirement for the job, questions about candidate’s property should not be asked during the interview. Asking a taxi driver whether he owns a computer does not seem to have any merit.

A candidate who informed the potential employer about his or her family plans or religion and is convinced that this information was a direct result of him or her not being hired, despite his or her qualifications and who knows that another candidate with equal qualifications has been employed, may file a discrimination lawsuit against the employer. The plaintiff may demand compensation in the amount of at least one monthly remuneration3, however he or she cannot ask to be hired for the job offered by the said employer.

See you in court?

Plaintiffs in employment discrimination lawsuits do not bear the burden of proof, but they must present the circumstances that have led to the discrimination. For example, they must list the specific questions that were asked during the interview and show that another, less qualified, person whose family status and religious views were aligned with employer’s personal expectations has been hired. In such cases, the employer must show that he or she hired a candidate, who fulfilled all requirements of the job and/or that the successful candidate has other unique experience or skills crucial for the job that the other candidates did not posses.

Employment discrimination does happen, but there is a legal recourse for those who have been discriminated against. Employers’ awareness regarding the rights of candidates and employees is growing, hence more and more often the recruitment process fulfills two important goals: it allows employers to select the best qualified candidates and it helps candidates to choose the best employer.

Katarzyna ANtolak

ABOUT THE AUTHOR

Katarzyna Antolak-Szymanski, Ph.D. – lawyer, mediator, legal counsel, lecturer at SWPS University, Deputy Dean for Education at the Faculty of Law. Mediation expert. Her professional interests include Alternative Dispute Resolution (ADR) in civil cases. She conducts analysis of admissibility and functioning of mandatory forms of mediation in legislation. She is working actively to popularize mediation as a conflict resolution method for individuals and European societies. Judicial Clerk of the Supreme Court of the Republic of Poland at the Labor Law, Social Security and Public Affairs Chamber. She co-authored Komentarz do Ustawy o Państwowej Inspekcji Pracy [Commentary on the Law on the National Labor Inspectorate] (2016).

Footnotes

1 e.g. 1 December 2009 case reference I OSK 249/09 or 6  September 2011 case reference I OSK 1476/10.
2  17 April 2007 case reference I UK 324/06.
3 Article 183d of the Labor Code.

 

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