When conducting hiring interviews, interviewers would be wise to avoid the following ten subjects that can lead into legally troubling territory:
- Marital Status:
“Are you married?” “Are you engaged?” “Have you ever been married?” are irrelevant to a person’s ability to do the job, and this status is protected by many states’ laws.
- Disabilities/Absences/Workers’ Comp Claims:
“How many times were you absent from your last job due to being sick?” “Have you ever filed a Workers’ Compensation Claim against an employer?” “Do you ever need time off for health reasons?” “Do you have health issues that may prevent you from coming to work on time?” are all questions that can lead into dangerous territory, including discussing disabilities protected by state and federal laws.
- Family Responsibilities and Obligations:
“Are you caring for any ill relatives?” “Do you have child care obligations?” “Have you needed to take time off to care for sick children?” “What responsibilities do you have to your family?” These questions lead to troubling areas, and can touch on familial status, which may be protected under local laws. If you are concerned about attendance, it is better to state your concerns (“This is an important role and regular attendance is very important”) then ask the question you really want to ask – “While we understand emergencies happen, do you foresee any reason you could not be here on time whenever you are scheduled to work?”
- Arrests or Convictions unrelated to the job:
“Have you ever been arrested?” is illegal in many states. Questions about convictions may sometimes be asked—although certain jurisdictions have made it unlawful to inquire prior to making a conditional offer of employment to the applicant. Even where you can ask, employers must consider certain factors when making hiring decisions about someone known to have a conviction in their past (such as the nature of the crime, its relationship to the job, how long ago the crime was committed, the applicant’s age at the time, rehabilitation, etc.)
- Age (except for establishing if the applicant is over 18):
“What year did you graduate?” “When did you get that degree?” can be landmines leading to violating age discrimination laws.
- Outside Activities unrelated to the job or industry activities:
“How do you spend your spare time?” “What do you do outside of work?” These questions can give you insight into your applicant and information as to whether they are a good culture fit for your business. Keep in mind, however, that some states prohibit employers from taking employment actions based on outside legal activities. Moreover, information about an applicant’s outside activities may reveal race/national origin or sexual orientation information that should not be part of the hiring decision. For these reasons you need to be mindful of your local requirements and what you do with the information obtained. Asking about career or work-related organizations to which they belong and their degree of participation is both permissible and insightful.
- Languages Spoken, unless job related:
“List the languages you read/write/speak, along with proficiency” can lead into national origin discrimination claims unless there is a business need. For example, if many of the business’s clients are Hispanic, asking if the applicant if fluent/proficient in Spanish is permissible if necessary for the job. The language proficiency is the job requirement – not the country where they were born or where their parents are from.
- Citizenship Status
Applicants can be asked if, after they are hired, they will be able to provide documentation of their eligibility to work in the U.S. Citizenship is a protected category and (except for work for certain governmental agencies and/or on certain governmental projects) cannot be considered in hiring.
- Financial Condition / Bankruptcies (where not job-related)
“How much do you owe on credit cards?” “Have you ever filed for bankruptcy?” “How much do you need to earn to pay your bills?” are questions that tend to have a discriminatory impact on minorities and, unless you are hiring a CFO whose personal finances may give insight into his or her financial judgment, or treasury person or accounts manager where similar considerations would be appropriate, these questions are likely irrelevant to the performance of a job.
- Transportation
“Do you have reliable transportation to get to work?” “How do you intend to get here?” “What are you going to do if your car breaks down?” also could have a discriminatory impact on minorities. Better to ask the question you want answered (as discussed, above): “This job requires regular and punctual attendance. If I hire you, can you be here every day you are scheduled to work on time on a regular basis?”
Interview questions should be focused on:
- Past performance and accomplishments
- Past experience
- Job-related skills and abilities
- Hypothetical questions posed asking how the applicant would handle a situation?
- Work-place factors
- Other areas specifically related to the job in question and/or to determining whether the applicant’s attitude and values (collaboration, integrity, respect etc.) match those the company is seeking.
Interview questions can lead employers into dangerous territory when treading in areas unrelated to the individual’s ability to do their job. Employment lawyers who represent businesses can help clarify the legal areas of inquiry and steer interviewers away from potential landmines.
