AVOIDING THE "ILLEGAL" INTERVIEW QUESTION
By Shawn Smith, J.D.
CHILDCARE SOLUTIONS' NOTE:
The whole issue of what questions you can ask when interviewing a job applicant, and which not to ask, is not a matter of legal or illegal (this is a huge misconception). The Department of Labor and EEOC establish REGULATIONS and publish guidelines on how to follow their regulations during the interview and hiring process. No one authority can arrest you or fine you because of a question you ask. However, if someone files a complaint against you claiming discriminatory hiring practices, or if an attorney general investigates your hiring practices, then they can use those questions in support of a case against you. Technically, in Ohio, these regulations apply only to companies, as defined by the regulations. Again – even though we commonly call these “Illegal Questions”, they are not. Still it is a best practice to follow the guidelines.
Years ago, employers could ask virtually any question they wanted of a job candidate. Today, employers that are not careful could find themselves the subject of a discrimination lawsuit, and liable for huge monetary judgments, even if their motivations for asking the questions were innocent or if they actually hire the applicant. Employers wishing to protect themselves from charges of discrimination in employment should abide by this general rule of thumb:
Questions to a job applicant should relate to his or her qualifications and ability to do the job. Questions that would have the affect of discriminating against (i.e., screening out) minorities or those of a particular gender are not permitted.
The following are examples of questions that can and cannot be asked in some of the most common categories:
- Marital Status. Questions such as “Are you married?”, “Do you plan to have children in the future?” and “How much money does your spouse make?” bear no relation to the applicant’s ability to do the job, and could be viewed as discriminating against women. If, as an employer, you are concerned with determining an applicant’s availability to work, or willingness to work in the future, you can legally and appropriately ask questions such as “What hours can you work?”, “Are you available for overtime?” or “Where do you see your career 5 years from now?”
- National Origin; Race. As it is illegal to discriminate against candidates based upon race or national origin, questions such as “What is your race?”, “What country are you from?”, “Were your parents born in the United States?” and “Is English your first language?” are totally inappropriate. However, when job responsibilities mandate fluency in English, or another language, it is proper and appropriate to inquire about the applicant’s ability to speak and write these languages. It is also permissible to ask candidates whether they are United States citizens, or whether and for how long they have the legal right to work in the United States.
- Age. Federal law prohibits discrimination against persons over the age of 40; therefore, employers should refrain from asking applicants their age. Employers may legally ask, “Are you 18 years of age or older?” when determining the candidate’s legal eligibility to work. Rather than asking whether a candidate is “old enough” to do a particular job, it is advisable to examine the candidate’s job experience to determine whether he or she is prepared to handle the tasks at hand.
- Religion. Interview questions such as “What is your religion?” or “Do you go to church?” are prohibited, as they are not job related, and could be construed as discriminating against candidates of diverse religious beliefs. Questions such as “Does your religion prohibit your working on Saturdays?” or “Are there any holidays on which you cannot work?” are also illegal. Employers are required to make reasonable efforts to accommodate observance of religious beliefs.
- Disabilities. Under the Americans with Disabilities Act, employers are prohibited from asking questions about an applicant’s disabilities during the pre-employment process. Therefore, employers may not ask such questions as “Do you have any disabilities that would interfere with your ability to do the job?”, “Have you ever filed a workman’s compensation claim?” or “Will you need a reasonable accommodation to perform this job?” If the applicant has an obvious disability, or discloses a hidden disability to the employer during the course of the interview, the employer may appropriately ask the candidate how he or she will perform particular job functions that would likely be impacted by the disability, or whether reasonable accommodations will be needed. It is legal for an employer to share with an applicant a list of the duties involved in the position, and to ask whether the candidate is capable of performing these duties. It is also legal to ask about a candidate’s attendance record in previous jobs, as there may be many reasons other than disability for poor attendance.
- Arrests. As a general rule, employers are not permitted to ask candidates “Have you ever been arrested?” Many arrests do not result in convictions, and inquiries concerning arrests can be perceived as biased against particular minority groups. When inquiring about an applicant’s actual conviction record, state laws vary as to what can and cannot be asked, and how the information can be used. Under EEOC guidelines, employers using an applicant’s conviction record in making hiring decisions must demonstrate a business necessity for this practice. In establishing business necessity, employers should consider factors such as the seriousness of the offense, the time elapsed since the conviction took place and whether the conviction would be likely to have a direct impact on the job in question.
- Financial Condition. Questions about a candidate’s financial condition such as “Have your wages ever been attached?”, “Have you ever declared bankruptcy?” and “Do you own or rent your home?” are not permissible, unless financial considerations are directly relevant to the applicant’s suitability for a particular position. Employers who do pre-employment credit checks on applicants are required to abide by the terms of the Fair Credit Reporting Act, obtaining written permission from the applicant to perform a credit check. In addition, if an employer rejects and applicant based on a credit report, it must inform the applicant of this determination and provide certain details about the information obtained.
- Personal Questions. Personal questions that are totally unrelated to job requirements should always be avoided. Even if there is no discriminatory intent behind these inquiries, questions such as “Do you have an active social life?”, “Do you belong to any groups, clubs or societies?” may be seen as relating to sex, religion, ethnicity or other improper criteria.
An employer’s primary interest should be the applicant’s ability to do a good job for the organization. Questions designed to elicit information about a candidate’s work experience, character, maturity, judgment and motivation are more likely to be helpful in making good hiring decisions than the improper questions discussed above, and limiting the interview to legal inquiries will save the employer the time and expense of defending discrimination charges.
source: Next Level Consulting 2003
Beachwood, Ohio 216-223-8090