The key to understanding the purpose behind these laws is best understood through the case which is credited with articulating the “disparate impact” test still used today. Disparate impact is a legal concept where an action, on its face, is neutral but has the effect of excluding a group of people based upon race, gender, sexual orientation, national origin, race, religion, age, disability, pregnancy, or other protected group.
The case is Griggs v. Duke Power Co. At issue was a requirement as a condition of employment and transfer within the company. The requirement was to have a high school diploma and to pass an intelligence test. Facially, this seems neutral and understandable, the company needs qualified individuals for many positions. Though this case is about job requirements, the standard has been applied to interview questions in subsequent case law.
At the time of the decision, the Court recognized that “the [Civil Rights Act of 1964] does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group.” Instead, the command of the Act is to “[remove] artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.”
When this case was heard, white employees without a high school diploma were permitted to work in those positions where African American employees without a high school diploma were not allowed the opportunity. The Court held “good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”
Interview questions, like employment requirements discussed in Griggs, must not be “unrelated to measuring job capacity.” This test is carried through into the current law and can be a challenge to comply with as determining which facially neutral policies have a discriminatory effect is hard. Review the interview questions you want to ask, see if there are any where you would be concerned with the potential liability of asking the question. If there are any concerns with the questions you are planning to ask, consult a Human Resource firm or an attorney with a practice in employment law. They can probably tell you if a question has been found illegal or has the risk of being an impermissible question.