This Note analyzes the Civil Rights Act of 1991 and relevant case law to determine whether posing sex-stereotyped interview questions is actionable conduct under Title VII. It questions whether proof of discrimination during a phase in the hiring process, specifically during the interview stage, supports a Title VII claim without other independent evidence that the hiring decision was discriminatory. Part I explains that the circuit courts have envisioned the impact of discrimination during the hiring process differently and, as a result, are divided in determining whether sex-stereotyped interview questions are actionable under Title VII. Part II examines the legislative history of the Civil Rights Act of 1991 to gauge Congress' intent in establishing a framework to analyze mixed motives claims. It concludes that the language, structure, and legislative history of the Act provide evidence of congressional intent to impose Title VII liability for a discriminatory phase in the hiring process as long as that discrimination bears a minimal causal connection to the hiring decision. Part II further concludes that sex-stereotyped interview questions are sufficiently related to the hiring decision to satisfy this causal requirement. Part III proposes a two-prong test to facilitate consistent adjudication of claims based on sex-stereotyped interview questions that promotes the goals of Title VII as amended by the Civil Rights Act of 1991. This Note concludes that if a plaintiff proves that an employer posed sex-stereotyped questions during an interview, a court should find that the employer violated Title VII unless the defendant introduces objective evidence that the interviewer posed similar questions to both men and women and that the sex stereotyping did not affect the hiring decision.
Heather K. Gerken,
Understanding Mixed Motives Claims Under the Civil Rights Act of 1991: An Analysis of Intentional Discrimination claims Based on Sex-Stereotyped Interview Questions,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol91/iss7/8