This information was developed by the Committee on Feminist Issues and Gender Equity (FIGE) as part of its mission to be of service to the Society for Music Theory in matters that are critical to all music theorists; this includes promoting fairness and equity in hiring practices in music theory. Comments and questions about this information, or about the FIGE in general, should be emailed to the FIGE chair.
Compiled by Elizabeth Sayrs, Committee on Feminist Issues and Gender Equity (FIGE) Chair 1999–2001; edited by Brad Osborn, FIGE Member 2011–2014.
This article is intended for guidance only and should not be used as a substitute for specific legal advice. If legal advice is required, an attorney should be consulted.
The SMT Committee on Feminist Issues and Gender Equity (FIGE) has heard concerns relating to potentially illegal interview questions in higher education for some time now. Although many administrators and faculty may be familiar with this issue, some colleagues or students participating in the search process may not be; 30% of all job applicants in all fields report being asked illegal questions.
Anecdotal evidence as reported to this committee suggests that such questions may not be as rare as we would like to think in music theory. The FIGE would like to take this opportunity to identify some common but potentially illegal interview questions, as well as suggest ways to cope with this issue in an interview situation. Information is provided for those who are conducting interviews as well as those who are being interviewed. If you are being interviewed for a position, it is highly recommended that you read all of the information.
This information was developed by the FIGE as part of its mission to be of service to the Society for Music Theory in matters that are critical to all music theorists; this includes promoting fairness and equity in hiring practices in music theory. Comments and questions about this information, or about the FIGE in general, should be emailed to the FIGE chair.
Information for Those Conducting Interviews
We are pleased to hear of your search to fill a position in music theory. As you advance in the search process, the FIGE would like to take this opportunity to identify some common but potentially illegal interview questions.
The following are some of the basic subject areas that, if asked about during the course of an interview, might be viewed as illegal questions or intention to discriminate in the United States (under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act (ADEA), the Americans With Disabilities Act (ADA), Equal Pay Act, Rehabilitation Act, Pregnancy Act, OWBPA, and FMLA):
- applicant's race or ethnicity
- sex, including pregnancy, birth control, or child care
- religion or religious days observed
- birthplace, nationality, or ancestry
- marital status
Other state or local laws may prohibit questions related to physical disabilities or handicaps, health or medical history, sexual orientation, and so on.
In academia, potentially illegal questions about the spouse's occupation and employment, plans to have children, and child care arrangements seem to be especially common. Job interviewers should also be aware of questions that don't explicitly request but are designed to or may potentially elicit illegal information (for example, a question about "how late can you teach?" may reveal information about children or child care). While some of these topics may come up informally in casual conversations, none of this information can be used legally for employment decisions. Below are some common but potentially illegal questions*, some of which have been reported in past music theory searches (note that not all of these questions need be asked of a female to be problematic):
- "Is that your maiden name?"
- "What does your spouse do?"
- "Do you have children/what age are your children?"
- "Do you [and your spouse] plan to have children?"
- "If you are offered this position, will your spouse come with you?"
- "How many days were you absent from work because of illness last year?"
- "What language do you normally speak?"
- "Were you born in the United States?"
- "What are your child care arrangements?"
- "If you (or your spouse/partner) were to become pregnant, how much leave would you take?"
Recent decisions have ruled that the asking of such questions with the intent to discriminate, regardless of the qualifications of the applicant, are actionable. Thank you for your attention in this matter, and we wish you the best of success in your search.
Information for Those Being Interviewed
You've come to your interview completely prepared, with copies of your CV, pithy descriptions of your dissertation research, and a list of reasons why you would be the perfect candidate for University X's music theory position. As you're making small talk with a potential colleague before the interview begins, the colleague begins lamenting how difficult it is to have commuter marriages in academia these days. Then s/he turns to you and asks, "would your spouse/partner move with you if you were offered this position?" In one small sentence, your interviewer has asked (improperly, and possibly illegally) for potential information about your marital status, sexual orientation, and spouse's/partner's occupation. Maybe you weren't completely prepared for that question...
As you begin the search process, the FIGE would like to take this opportunity to identify some common but potentially illegal interview questions, as well as to suggest some ways to effectively handle situations like the one described above. It is much better to be prepared for such a situation than to be caught off guard.
First, know which questions are acceptable, and which are not.
Examples and explanations of potentially illegal questions can be found above (Information for Those Conducting Interviews).
Second, decide how to respond.
Here are six possibilities:
- Answer the question. But if you do answer the question, realize that you are providing a potential employer with information that is not job-related and, by rights, should not enter into a hiring decision. If you are not offered the position (or in some cases, if you are offered the position), you will never know if or how that information was used.
- Tell them what they want to hear, part I. One option is to answer as truthfully as is helpful. Responses such as "yes, I'm married but my spouse is a freelancer," and "no, I'm not married but I'm bringing my golden retriever" are encouraged. Great if it is true, but if not, it can get tricky if you are actually offered the job. Which brings us to…
- Tell them what they want to hear, part II. If you are asked a potentially illegal question, try to figure out the context and motivation behind the question. For example, say that you are asked about your child care arrangements; perhaps your potential employers are worried that you won't be able to attend the weekly late afternoon departmental lecture series. You can politely ask your interviewer, "why do you ask?" or you can guess at their anxiety and reassure them that you have always been able to arrange child care for departmental functions as long as you knew in advance.
- Tell them before they can ask you. If you think it is likely that your prospective employers will know about information that they are not legally allowed to ask about (for example, you're in a wheelchair, or have a "baby on board sign" on your car, or wear a wedding/commitment ring) you can choose to bring up such information in a casual setting in order to put to rest any concerns that they may have. For example, on the standard car tour of the area, you might remark that you like a particular neighborhood because it is close to schools—and by the way, now that your kids are in school full-time, child care isn't a problem. This can run the same risks as answering inappropriate questions in an interview setting because you are providing information that rightly should not be taken into account in hiring. There are other risks as well; in this particular example, you also run the risk of being seen as "less serious" if you talk about your child(ren) at all. But you may also be seen as more straightforward and honest. In this case, it really depends on the committee and the environment of the school in general.
- Don't ask, don't tell. On the other hand, you can be scrupulously "business-like" and act as if you have no personal life at all. If an interviewer asks you something inappropriate, look vaguely confused, or politely decline to answer the question: "I'm not comfortable with that question," or the non-committal "that's never been an issue with me" will often work. This is harder to pull off gracefully unless you've practiced in advance, but if the interviewer has asked an inappropriate question by mistake (and knows it), s/he may be grateful for the opportunity to move on with as little fuss as possible.
- Everyone's fantasy response. You refuse to answer the question, righteously informing your interviewer of his/her error (possibly right before you storm out of the room). You are absolutely within your rights to refuse to answer, but there are drawbacks, of course. You will probably be seen as uncooperative, touchy, or confrontational. Even though it is a potentially illegal question, forfeiting the position is a likely practical consequence that has to be weighed. Everyone's fantasy response typically ends with a multi-million dollar award, too, but these are few and far between, because these cases are very difficult to prove. If you do experience such a situation, getting good legal advice is essential if you choose to pursue the issue in this way.
Third, if you do experience potentially illegal interview questions…
Please notify the FIGE chair as soon as possible. You may be as general (a "small liberal arts college," a "big state university") or as specific as you wish. All information will be kept strictly confidential. At this point, information will be used for tracking only, as a way to measure how much education needs to be done on this issue, and to provide support and resource information for job applicants. Also, we encourage you to send suggestions for responses to questions, as well as your amusing or successful interview tales (also kept confidential or anonymous if requested, of course).
We wish you the best of success in your search!
* We use the phrase "potentially illegal" here because, for a question to be "criminally" illegal, there has to be evidence that the information was used inappropriately in the employment process; that is, the information was used to discriminate in employment, or was gathered with the intention of using it in the employment process. However, civil issues are trickier, and some recent judgements have ruled that simply asking these questions is actionable even if the applicant is not qualified for the position (that is, you're not allowed to violate someone's civil rights just because you wouldn't hire them). The regulations of the Equal Employment Opportunity Commission list specific questions which it believes can never be job related, and therefore are "illegal." If someone is asked an illegal question and then hired, there is no grounds for a suit because there is no lost opportunity. But if an illegal question is asked and the applicant is not hired, the fact the question is asked is prima facie evidence of discrimination. Also, state laws and federal laws (including Title VII, ADEA, Equal Pay Act, Rehabilitation Act, Pregnancy Act, ADA, OWBPA, and FMLA) can be tricky. Federal law prohibits some questions about marital status unless they are asked about all candidates, but most state laws prohibit all questions about marital status. Laws are also different in Canada and overseas. This is constantly changing as new cases are decided, and if you are to the point where you need to know this information, you should probably consult a professional.