There aren’t many recent cases challenging companies’ hiring practices. This is primarily due to the secluded nature of the job interviews and the associated difficulties with proving such practices. However, if inappropriate interview questions are persistent and asked of multiple job applicants, an employer may find itself in a costly legal action, defending against the allegations of discriminatory hiring practices.
Generally, an interviewer should avoid questions that are not related to job responsibilities. The interviewer should not ask questions that are not designed to elicit an individual’s qualifications or abilities to perform job functions. Specifically, the interviewer should avoid questions related to an applicant’s age, race, national origin, sex, marital status, religion, union affiliations, or prior workers’ compensation claims. If any of this information is necessary for an open position, such as the candidate’s prior criminal background or work authorization, the interviewer should obtain such information after he or she extends a conditional offer of employment.
The following summary of questions that illustrates some of the traps the interviewer should avoid to minimize the risk of discriminatory hiring claims:
- Age – Don’t ask about an applicant’s age or any questions that would allow the interviewed to deduce the applicant’s age, such as the year of his or her elementary/junior/high school graduation. You may ask, however, whether the applicant meets the minimum age requirement.
- National Origin – Don’t ask about an applicant’s national origin, place of birth, foreign addresses, or his or her ability to speak foreign languages. You may ask, however, about the applicant’s permission to work in the U.S. Obviously, you will have to verify the applicant’s employment eligibility when completing his or her I-9 form.
- Race and Color – Don’t ask questions that would elicit an applicant’s race or color or would apply to the applicants of certain race or color.
- Religion – Don’t ask questions that would reveal an applicant’s religious affiliation, customs, or preferences. Unless you are a religious organization, don’t ask whether the applicant can work on religious holidays or Saturdays.
- Prior Arrests / Convictions – Don’t ask questions about an applicant’s arrests or charges. You may ask, however, whether the applicant was convicted of a crime. If such information is requested by your customers, which is often the case if you provide services to various federal or state agencies, you should obtain the applicant’s permission to obtain such information after such applicant is extended a conditional offer of employment.
- Union Affiliations – Don’t ask questions about an applicant’s union affiliations or any other organizations that would reveal the applicant’s protected status, such an AARP membership or societies for individuals with disabilities.
- Sex – Don’t ask questions that may apply only to one sex or that may affect one sex over the other, such as questions about childcare arrangements or plans on having children.
- Military Service – Don’t ask questions about foreign military service or about military services or status, unless such information is pertinent for job duties, such as security guard.
Again, your interview questions should focus on the applicant’s past performance, qualifications, and on the requirements listed for the job.
Should you have any questions regarding the above-mentioned issues or other employment-related matters, please contact us today.