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Legal and Illegal Interview Questions

Business owners and HR professionals find that their expertise covers many aspects of business but some find dealing with personnel and employment issues more challenging than expected.

One area in which employers are often less knowledgeable than their lawyers wish later is hiring practices.  Over the past ten years, employers have been increasingly faced with criticism (and in too many cases lawsuits), because questions asked during the recruiting, interviewing and selection of employees are discriminatory.

It can sometimes be difficult for employers to obtain sufficient job-related information without requesting information which can be viewed as potentially discriminatory.  In hopefully all cases, discrimination is not intended but employers should be aware of what types of questions can potentially cause them legal problems.

While no guidelines can be complete or definitive on what questions an employer can or cannot ask a prospective employee during an interview session, the guidelines below to help illustrate the difference between a question that can be viewed to rule out a candidate on some impermissible basis and a question that effectively provides the employer with helpful information regarding the fit of the prospective employee.

National Origin/Citizenship

Improper:

  • Are you a U.S. citizen?
  • Where were you/your parents born?
  • What is your native tongue/language?

Proper:

  • Are you authorized to work in the United States?
  • What languages do you read, speak or write fluently?(Caution!!  This question is okay only if the ability is relevant to performance of the job.)

Age

Improper:

  • How old are you?
  • When did you graduate from college?
  • What is your birthday?

Proper:

  • Are you over the age of 18?

Marital/Family Status

Improper:

  • What’s your marital status? Circle one:  , Mrs. or Miss.
  • Who do you live with?
  • How many children do you have?
  • How old are your children?
  • What are your child care arrangements?
  • Are you widowed, divorced or separated?

Proper:

  • Would you be willing to relocate if necessary?
  • Are you available to work overtime?
  • Travel is an important part of the job. Would you be willing to travel as needed by the job? (Caution!!  This question is okay only if ALL applicants for the job are asked this question.)

Affiliations

Improper:

  • To what clubs or social organizations do you belong?

Proper:

  • Do you belong to any professional or trade groups or other organizations that you consider relevant to your ability to perform this job?

Personal

Improper:

  • How tall are you?
  • How much do you weigh?

Proper:

  • Are you able to lift a 50-pound weight and carry it 100 yards, as that is part of the job?

(Questions about height and weight are not acceptable unless minimum standards are essential to the safe performance of the job, similarly, questions about the ability to lift a certain amount of weight must be related to the position applied for.)

Arrest Record

Improper:

  • Have you ever been arrested?

Proper:

  • Have you ever been convicted of _________?(The crime should be reasonably related to performance of the job in question.  MOST IMPORTANTLY, employers must review local laws as many jurisdictions are passing so called “ban the box” legislation which prohibits an employer from questioning an employee about criminal convictions until a conditional offer of employment has been made.  Also, it is never permissible to inquire about arrests – in appropriate circumstances an employer may inquire about convictions.)

Military

Improper:

  • If you have been in the military, were you honorably discharged?

Proper:

  • In what branch of the Armed Forces did you serve?
  • What type of training or education did you receive in the military?

Disabilities

Improper:

  • Do you have any disabilities?
  • Please complete the following medical history …
  • Have you had any recent/past illnesses or operations? If yes, please list and give dates.
  • What was the date of your last physical exam?
  • How’s your family’s health?
  • When did you lose your eyesight?

Proper:

  • Are you able to perform the essential functions of this job with or without reasonable accommodations? (The interviewer must thoroughly describe the job.)
  • As part of the hiring process, after a job offer has been made you will be required to undergo a medical exam. Exam results must be kept strictly confidential, except medical/safety personnel may be informed if emergency medical treatment is required, and supervisors may be informed about necessary job accommodations, based on the exam results.

Other

Improper:

  • Have you been treated by a psychiatrist or a psychologist? For what condition?
  • How many days were you absent from work because of illness last year?
  • Is there any health-related or physical impairment reason you may not be able to perform the job for which you are applying?
  • Are you taking any prescribed drugs?
  • Have you ever been treated for drug addiction or alcoholism?
  • What is your credit record?
  • Do you own your home?
  • What is your hair and eye color?
  • What is your garnishment record?
  • What is your maiden name?
  • What is your spouse’s name?
  • What is your spouse’s occupation?
  • Have you ever filed a Workers’ Compensation claim?

Proper:

  • What experience qualifies you for this job?
  • Do have licenses and certifications for this job?
  • What name(s) are your work records under?

Keep in mind that these guidelines pertain only to inquiries directed to applicants prior to employment.  Other information such as race, number of dependents, etc., may be requested after the applicant is on the company payroll, provided, of course, that such information is needed for legitimate business purposes and not used for subsequent discrimination.

The key to formulating proper interview questions is to strictly limit inquiries to subject matter directly related to the applicant’s ability to perform the job.  That’s all that legally, and should, matter.

The best practice is to review questions you plan to ask and determine exactly what employment issue you are trying to address.  Then determine whether the question is likely to elicit any information other than what specifically addresses that issue.

Interviews can be tricky waters.  What passes as polite conversation, or questions reflecting a genuine interest in an applicant’s personal well-being, can easily be misconstrued.  The interviewer must be disciplined and prepared to navigate toward the real goal of any interview—to determine whether this applicant can perform the job.

 

 

Posted in: Employment Law