employment discrimination
Can non-employees ask prohibited questions of a job candidate?
<p><a href="https://academia.stackexchange.com/a/81341/20300">This answer</a> on Academia gave rise to a legal question.</p>

<p>Situation:</p>

<ul>
<li>Academic employer is hiring for a position</li>
<li>As part of formal process of hiring they allow <strong>students</strong> (not employer's employees) to ask the candidate questions.</li>
<li><strong>Students</strong> ask questions which &ndash; if asked by a real interviewer &ndash; would be in violation of protected status (gender, family status, pregnancy, etc.).</li>
</ul>

<p>Does the fact that the question is asked by students (albeit ones participating in formal hiring process) protect the employer from being sued for hiring discrimination, the way they could be if an official interviewer employed by the employer asked the same question?</p>

<p>In the US, there are separate regulations pertaining to different forms of discrimination for employment, thus there is no one-size answer. For sex, <a href="https://www.gpo.gov/fdsys/pkg/CFR-2014-title29-vol4/xml/CFR-2014-title29-vol4-part1604.xml" rel="noreferrer">29 CFR 1604.7</a> states:</p>

<blockquote>
  <p>A pre-employment inquiry may ask “Male........., Female.........”; or
  “Mr. Mrs. Miss,” provided that the inquiry is made in good faith for a
  nondiscriminatory purpose. Any pre-employment inquiry in connection
  with prospective employment which expresses directly or indirectly any
  limitation, specification, or discrimination as to sex shall be
  unlawful unless based upon a bona fide occupational qualification.</p>
</blockquote>

<p>Let us take it for granted that sex is not a bona fide occupational qualification for an academic position. Thus the question is lawful only if there is a legal underlying interest. Suppose the question were "As a man, would you be able to able to effectively empathize with your nursing students?": this does not serve a legally allowed purpose, and only serves to indirectly restate a sexually discriminatory premise. This <a href="https://www.unh.edu/hr/sites/unh.edu.hr/files/media/pdfs/conduct-interview-legally.pdf" rel="noreferrer">University of New Hampshire guidelines pages</a> summarizes the basic interview prohibitions succinctly.</p>

<p>Notice that the language of the regulation is stated purely in terms of the existence of such an inquiry – it does not restrict such inquiries "as made by the CEO", or "as made by the hiring committee". It simply says that such an inquiry is not to exist. It is thus the university's obligation to assure that all administrators, faculty members, graduate students, undergraduates, staff members, and members of the general public who are allowed to participate in pre-hiring interviews know what kinds of questions are legal versus illegal.</p>

<p>There is actually no such thing as a prohibited question. It is best practices not to ask questions about matters upon which an employer is not allowed to discriminate. But, the discrimination is what is prohibited, not the questions. Asking a question is merely strong evidence that the matter was considered by the employer. But, in a context like this one, the evidence may not be nearly so strong.</p>

<p>These students are acting entirely on behalf of the prospective employer and fully represent it, so they need to behave accordingly. They ought to have been briefed on proper procedure. The employer is certainly fully responsible for whatever they say and do.</p>
