Recently, several cases have come to light where, in the selection process for a particular position in a company, candidates were asked to take a pregnancy test. This test is not linked in any way to the position in question and is neither legal nor licit, and in fact the company in question has been denounced and fined . But this is not the only case.

In many personnel selection processes, aspects that do not concern the company or affect the performance of the position offered are questioned. Some of them are even illegal. That is precisely what we are going to focus on in this article: the asking of illegal questions in a job interview .

The recruitment process

We live in a world where the labour market is competitive and there are a lot of people interested in almost any possible job that can be created. So when a company needs to fill a vacancy or expand and makes that demand visible, it often receives hundreds (sometimes even thousands) of responses. And in that situation, it must choose among the candidates by filtering the candidates in a more or less systematic way , something that has been done for thousands of years (it was already done in the Chinese Empire).

The selection of personnel is the process by which the company, after establishing the criteria regarding the type of worker it is looking for and the knowledge it needs to cover the position in question, proceeds to look for the candidate who best suits the position. For this purpose, different techniques are used, such as psychometric tests that measure the subject’s ability in certain areas. Another of the main pillars in the selection of personnel is the interview.

In a job interview, a subject belonging to the corporation or company in question or directly the person interested in hiring a worker establishes an interaction in which he or she can observe the characteristics and/or aptitudes of the candidate and evaluate whether or not he or she can be suitable for the position offered through a series of questions or even activities.

The functions of the job interview are to have a first contact with the applicant and to collect information about his/her suitability as a candidate, in terms of knowledge, skills, abilities and attitudes that may be useful in the offered position in question. But they must limit themselves to that: they must not enter into the personal life of the subject unless it is essential for the exercise of the position.

What questions are illegal in a job interview?

Sometimes, the questions asked by the interviewer may go beyond these boundaries and refer to aspects that are not related to the job functions or the individual’s skills. These questions are illegal because they violate the right to privacy, as well as because they may involve discrimination and exclusion on grounds other than one’s own professional competence.

Among the aspects that should not be questioned are the marital status, sexual orientation, expectations of having or not having children physical characteristics (unless it is a necessary requirement for the position in question), the presence of physical or psychological diseases, the race of belonging or the nationality, religious or political beliefs (including information on where one is serving, if any) or details of one’s personal life that are irrelevant to the practice of one’s profession (not including asking for examples of situations in which one has had to use a required skill, for example).

Thus, questions as frequently asked as do you want to have children in the near future? or are you married? are illegal. If other aspects are to be evaluated from these questions, other strategies should be employed. Even something as seemingly innocuous as age is not relevant (the same is not true for professional experience).

Because these questions can generate a bias that leads to discrimination on the basis of ideology, gender and sexual orientation or race or religion, which is against the law. For this reason, although we may decide to answer them, we also have the option of refusing without being prejudiced. It is also possible to file a complaint with the labour inspectorate, which may result in a penalty or fine for the company or firm in question.

Why do they perform them?

Due to the high prevalence of this type of question, it is legitimate to ask why it is being asked.

In some cases can be done simply to observe the reaction of the candidate to the question in question. It should be noted that this is a selection process and, taking into account the importance of attitude when carrying out a specific project, observing how a subject behaves when faced with a strange situation or an uncomfortable or unexpected question can serve to elicit a way of thinking and acting in the face of pressure or surprise.

In these cases the content of the answer is not relevant, but what would be valued would be the way in which the candidate answers it or even the way in which he does not answer it. This does not mean that it is not an illegal question.

However, in the vast majority of cases, the aim of this type of question is simply to obtain direct information about the person’s life in order to predict their productivity . For example, if a woman is pregnant or plans to have children in the near future, the company may think that it is better to hire someone who does not have such plans, avoiding aspects such as granting maternity leave or looking for possible substitutes.