Making hiring decisions based on a person's medical history is illegal, says Martin Ebel, an employment attorney with Boston firm Shepherd & Ebel LLP. What's more, Ebel says, information about sick time may be protected by the Americans With Disabilities Act and Workers' Compensation statutes.
The only time an employer may ask about a health condition before making an offer is when there is a known disability (because the applicant has voluntarily disclosed it or it is obviousthe applicant needs to use a wheelchair, for instance) and the discussion is to determine the specifics of accommodations. The issue of an applicant's medical circumstances should not be discussed during reference checks either, Ebel adds.
That said, however, your recourse is limited. You could let the Equal Employment Opportunity Commission and your state's disability and civil rights commissions know about the practice, but unless you are disabled or you've lost time because of a workplace injury, you probably wouldn't be granted financial compensation in a lawsuit unless you could prove you were perceived as disabled, you were denied the position because of that perception, and you suffered damages as a result.
If you really want the job, your best bet is to try to figure out why the employer asked, and if possible frame the answer to highlight your strengths. For example, "I missed a few days because of the flu, but overall I have a great attendance record. In fact, I'm usually the first one in the office," and try to steer the conversation to your strong points.