Largely gone are the days when employers could blatantly make hiring decisions based upon unlawful factors, like the sign in a store window that reads: “Help Wanted – No Irish Need Apply.” This, however, is not to say that discriminatory bias, whether conscious or unconscious, does not exist in today’s job market. It does. It is often is more subtle and harder to prove, but it is important to remember that job applicants do not need the proverbial “smoking gun” in order to seek redress.

Most recently, in the context of equal pay legislation, Massachusetts has made significant strides to combat current and historic discriminatory pay practices based upon gender.  The newly enacted Massachusetts Equal Pay Act, M.G.L. c. 149, § 105A makes it unlawful for an employer to, among other things, “seek the wage or salary history of a prospective employee [unless] an offer of employment with compensation has been negotiated and made to the prospective employee.” The Legislature recognized that historic gender-based pay inequities are propagated today by what may otherwise appear to be facially innocuous questions about an applicant’s salary history. If you suspect that you were offered a lower salary – or were hired and are being paid less – than a member of the opposite sex, such impermissible inquiries during the hiring process may be used to bolster your legal claims.

Further, it is not uncommon for an interview to involve ice-breakers or non-work related chit-chat that crosses the line by focusing on an applicant’s personal life, family background, caregiver responsibilities, etc. Where these questions seek – or elicit – information about certain legally protected characteristics (e.g., sexual orientation, pregnancy, association with disabled family members), it may be used as circumstantial evidence to establish a failure to hire claim. For example, the U.S. Equal Employment Opportunity Commission (“EEOC”), the national agency that administers and enforces laws against workplace discrimination, has published Enforcement Guidance regarding Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. As the Guidance notes, even “benevolent stereotyping,” e.g., expecting that a woman with children would not want to take a job with significant travel obligations, may support a claim for unlawful conduct.

Similarly, questions about an applicant’s health, medical history, or handicap may raise concerns about unlawful conduct. The Massachusetts Commission Against Discrimination (“MCAD”), the state agency that administers and enforces laws against workplace discrimination, has published Guidelines on Employment Discrimination on the Basis of Handicap, which contains five pages about permissible and impermissible pre-employment inquiries. For example, it is perfectly appropriate for an employer to ask about an applicant’s ability to perform the job, e.g., can you lift and carry objects over twenty-five pounds? By contrast, a question like, “Do you have any physical limitations that would prevent you from doing the job?” may cross the line and bolster a claim for disability discrimination if the applicant is ultimately not selected for employment.

As a practical matter, for a candidate faced with these types of inappropriate questions, pounding the table and saying, “You can’t ask me that!” is not a viable solution. When faced with this situation in an interview, the candidate may try to steer the discussion back to where it should have been in the first place, for instance, what are the specific duties and essential functions of the job and why the candidate is exceedingly qualified for the position.

The bottom line is that, while the law permits an employer to make mistakes and unwise hiring decisions, it does not permit an employer to make hiring – or any employment – decisions based on discriminatory bias. If something other than an individual’s objective experience and qualifications is the driving force behind the employment decision, it may very well be unlawful.