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Hiring
Do's & Don'ts of Interviewing Job Applicants
It's okay, even essential, to inquire into an applicant's abilities and qualifications.
Just be cautious about delving into the following lines of questioning.
Family Issues
A line of questioning that all too frequently arises, particularly for women, is that of family responsibilities or circumstances. You may not discriminate against candidates simply because they are married or have childbearing plans. Assuming your real concern is the employee's availability, state the time requirements of the position and ask if they can comply with those requirements.
Don't ask: “Do you have, or plan to have, children?” or even, “Do you wish to be addressed as Miss, Mrs., or Ms.?”
Ask: “Can you work the days and hours I have described with a high degree of regularity and predictability?”
Age-Related Questioning
The mere inquiry about age could deter some people from applying for a position, having an adverse effect on older applicants. Avoid questions, therefore, that even indirectly elicit an applicant's age. Otherwise, you may have to prove that age played no part in your decision not to hire.
Don't ask: “What year did you graduate from high school?” (This forces applicants to identify their age, give or take a year, since most people graduate between age 17 and 18.)
State: “Your employment will be subject to verification that you meet legal age requirements.
Inquiries Regarding Religious Beliefs or Practices
Avoid inquiries into an applicant's availability for work, or the need for an accommodation, due to religious practices. The Equal Employment Opportunity Commission has concluded that such inquiries are prohibited unless (a) asking these questions does not have an exclusionary effect on an applicant who will need religious accommodation or (b) such inquiry is justified by a business necessity.
Don't ask: “What is your religion?” or “What religious holidays do you observe?”
Ask: “Can you work the days and hours I have described with a high degree of regularity and predictability?”
Arrests vs. Convictions
Asking about prior convictions is lawful under most circumstances. In fact, it's even recommended to protect you against negligent hiring claims. But the EEOC takes the position that asking about arrests “tends to discourage application by those with arrest records and tends to induce false or incomplete answers for which the applicant may be penalized.” Because such requests have a proven adverse impact on certain racial groups, and are marginally related to most job qualifications, the courts will seriously scrutinize any arrest record inquiries.
Don't ask: “Have you ever been arrested?”
Ask: “Have you ever been convicted of a crime?” (In most jurisdictions, this question must be accompanied by a statement that a conviction will not necessarily disqualify the applicant from the job.)
Disability Related Questions
The Americans with Disabilities Act forbids you from making pre-employment inquiry into whether an applicant has a disability or, if the disability is apparent, inquiring into the nature or extent of the disability. You may, however, inquire about the ability of a job applicant to perform job-related functions.
Don't ask: “Do you have any physical disabilities or handicaps that would interfere with your ability to perform the job?”
Ask: “Can you perform the functions of the job with or without reasonable accommodation?”
Questions About Economic Status
Economic studies indicate that certain minority groups are disproportionately economically deprived. Asking applicants if they have ever had wages garnished, declared bankruptcy, or own a home may have an adverse impact on minorities. Not only may such inquires be viewed as evidence of discrimination, they may also violate some state laws, as well as various federal statutes, including the Consumer Credit Protection Act and the United States Bankruptcy Code.
Don't ask: Any questions about wage garnishments, personal bankruptcy, home or car ownership.
Ask: (if car travel is required by the job) “Do you have the use of a reliable car?”
Ask the wrong interview questions and you could be sued by a rejected applicant.
Interviewing job applicants is an important way to gauge their suitability for employment. But to minimize your exposure to legal liability, you must conduct your interview in a non-discriminatory manner. If your questions, however innocent, appear to discriminate against protected classes, you will have to prove they didn't affect your hiring decision.
The guiding principle is that any questions you ask should focus strictly on the applicant's ability to perform the job. In order to do this, you must know beforehand the specific requirements of the job. What technical or other skills are necessary? What time commitment is required (overtime, travel, hours of work) and what is the necessary educational background?
You may find it useful to prepare a list of relevant and appropriate questions prior to meeting with an applicant. As you do, avoid the pitfalls described in this brochure.
Article excerpted from The Do's and Don'ts of Interviewing, by Erik J. Belanoff, Esq., Dean L. Silverberg, Esq. and Evan J. Spelfogel, Esq. Epstein Becker & Green, P.C.
