Excerpted from Hiring and Firing (Entrepreneur Press)
Applicants, and not just employees, enjoy various legal protections even during the recruitment and pre-hire process. Employers must therefore pay attention to the various legal protections, most notably the protection against discrimination in the recruiting, interviewing and hiring process. There are many traps for the unwary employer [to avoid].
Interviewing a prospective employee is not akin to speed dating, so take your time and be careful. There's a lot to be gained in an interview by posing methodical and well-thought-out questions.
Prepare for the Interview
Here are some important steps to ensure an efficient and effective interview process:
- Does the person applying for the position have all the requisite skills and minimal educational background for the position? If not, don't waste your time interviewing them.
- Review the applicant's application, résumé and any other information that the applicant provided. Make sure all portions of the application are filled out. Look for inconsistencies between the application and the résumé, as well as gaps in employment. If you find inconsistencies or gaps, be sure to ask the applicant about it. He or she could have a logical explanation, or give you reason to be cautious in hiring this person.
- If you'll be conducting a reference check and/or background check, have you, pursuant to the Fair Credit Reporting Act, informed the applicant of the process and informed him or her that an acceptable background report is a prerequisite to employment?
- If you'll require a medical exam and/or drug screen, has the applicant been informed that successful completion of these also are conditions of employment?
There's a lot that could be lost in terms of both time and money if the screening process is less than adequate. Some of the danger areas to watch out for include claims of discrimination, violation of privacy and negligent hiring.
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"But I Didn't Mean Anything by It!"
We all just talk sometimes. We say things that are simply forgotten almost the moment they're out of our mouths. A job interview is definitely not the place for this type of conversation. You can be sure that if you ask an applicant a question, that person believes you really care about the answer. And the law tends to back up an applicant on that conclusion.
Illegal interview questions can get a company into trouble. If you make a discriminatory statement or ask a discriminatory question during an interview, it's not something the applicant is likely to forget when that person isn't offered the job. That discriminatory statement will be used as evidence of discrimination if the applicant decides to claim that is the reason the job was not offered to them.
You'll have to have a credible explanation of why you made the statement and why nothing was meant by it. That explanation will have to be believed by a judge, a jury or an administrative agency. You should be able to clearly and logically explain the reason you chose to hire the person that got the job--and why you didn't hire the person who is now claiming that a legally impermissible reason was why they didn't get the job. Always be able to state the legitimate, non-discriminatory, business reason for your hiring decision.
What a lot of work! Why not just make sure that discriminatory statements or questions never make it into the job interview? It's such a better approach. If you don't need to know the answer, or if it's better not to know the answer, then don't ask the question.
The key is to keep all interview and application questions related to the job in question. If the question doesn't help you evaluate whether this applicant is the right person for this job, then don't ask it. Straying from this fundamental goal might get you into legal trouble.
So What Exactly Can You Be Accused of?
More than 40 years ago, Congress enacted a law called Title VII of the Civil Rights Act of 1964. A few years later came the Age Discrimination in Employment Act and then, in 1990, the Americans with Disabilities Act. These laws prohibit discrimination based on sex, race, color, religion, national origin, age and disability.
Title VII and the ADA cover all private employers, state and local governments, and educational institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations and joint labor management committees controlling apprenticeship and training.
The ADEA covers all private employers with 20 or more employees, state and local governments (including school districts), employment agencies, and labor organizations.
In addition to the federal anti-discrimination provision discussed briefly above, individual states have passed their own laws prohibiting discrimination, some of which provide broader protection to employees than the federal laws. For example, categories like genetic traits, gender identity, sexual orientation and marital status are protected in some states in addition to those covered by the federal laws.
So what does all this mean to you when you're hiring? Don't ask questions or encourage discussion of those topics. Why would you want to? None of those areas have anything to do with what you're hiring someone to do. Stick to the areas you really care about, including these:
- What is their educational background?
- What part of their education best prepared them for the job?
- What recent work experience have they had that best prepared them for the job?
- What special skills do they have for the job that aren't reflected in their résumé?
- Can they tell you about their recent work experiences that will help them perform the job better?
- What kind of past success have they had?
- What unique qualities will they bring to the job?
- Are they available to work when you need them?
Ten Questions to Absolutely Avoid During Interviews
- How old are you? It doesn't really matter unless you are casting a teenage sitcom. Don't try to be sly about it, either, with questions like: "When did you graduate from high school?" "When were you born?" "You are about the same age as me, right?" They all can be used to establish an age discrimination claim if the person is not hired and turns out to be 40 years old or older.
- Have you ever been arrested? In the United States, we are presumed innocent until proven guilty. Any questions regarding arrests that did not result in a conviction should be avoided, as should any questions regarding criminal records that have been sealed, eradicated or expunged. In fact, even actual convictions should not necessarily disqualify someone from employment. Convictions can be taken into consideration while making the employment decision, but factors like age at the time of the offense, seriousness and nature of the offense, and whether the person was rehabilitated should all go into the decision-making process.
- Where were you born?How did you learn how to speak English so well? Any question that elicits a person's country of origin, lineage, ancestry or nationality, are illegal. The one appropriate question to ask is based on immigration requirements: "Are you prevented from being employed in the United States because of your visa or immigration requirements?" Likewise, don't comment on their charming accent or the unique spelling of their name. Also, don't ask any of these questions about the applicant's spouse or relatives.
- Have you ever filed a workers' compensation claim? Questions involving filing workers' compensation claims are not a valid basis to make an employment decision. The law provides this remedy for injured workers. Penalizing someone for exercising such a right is illegal.
- Are you disabled? Employers should not make any inquiries about medical conditions, disabilities, the amount of sick time an applicant took from a prior job, or require an applicant to take a medical exam before making a conditional offer of employment.
- How many children do you have? This question has no relevance to anything in a job interview. You'll see the family photos on the desk in due time. Be patient.
- Are you married? Single? Divorced? Engaged? Likewise, these questions have no place in an interview, especially if you are--or can seem to be--asking for personal reasons. Don't go there. Under some states' laws, employers are strictly liable for managers' and supervisors' sexual harassment. That means if you do it and it is proven, you, as an agent of the company, have brought a liability against the company.
- Are you pregnant? Do you plan to become pregnant? Pregnancy discrimination is a form of sex discrimination. It is illegal for an employer to refuse to hire an applicant because she is pregnant if she is able to work and is qualified for the position. Once you have the knowledge that someone is pregnant and you don't hire them, it is very difficult to convince a jury that you did not take that fact into account at all when making the hiring decision. Better not to know and not to have to defend yourself.
- What is your religion? There is really no reason to talk about this either. If you are concerned about covering all work shifts, then simply explain when your company is open, and ask if the applicant can work all shifts.
- What is your sexual preference? Certainly no one should ever ask this in an interview--but they have. Please don't become one of the statistics.
The general rule is that employers must avoid questions during the recruitment, application and interview process that require applicants to reveal information about their protected characteristics. Here are a few more examples:
- Do you need any accommodations to perform your job? Note, however, that it is acceptable to ask an applicant, "If hired, could you perform the essential functions of the job, with or without a reasonable accommodation?"
- What language do you speak at home? Employers can ask about language skills only if relevant to the job (for example, international relations position, interpreter).
- What is your mother tongue? (ethnicity, national origin)
- What is your maiden name? (marital status)
- How did you get that name? (ethnicity, national origin)
- Who will take care of your family? (marital status)
- Which holidays will you need to take off? (religion) Note, however, that employers generally can ask whether the applicant is available to work on weekends or evenings under certain circumstances.
- What is your height and weight?
Employers must also avoid discrimination in the recruitment and application process. Therefore, in seeking out applicants, in communications with recruiters and headhunters, and in job postings, want ads, advertising and job descriptions, employers should avoid statements such as the following:
- "Employer looking for a thoughtful but aggressive woman as an assistant."
- "Employer looking for someone who takes an interest in her work."
- "Employer desires a salesman [use "salesperson" or "sales representative"], waitress [server], stewardess [flight attendant], fireman [firefighter]..."
- "Employer desires a recent [college or high school] graduate." This can be seen as age discrimination.
- "Employer desires a customer service girl with no accent" implicates the employer on gender and ethnicity/national origin discrimination.
- "Employer desires a 'family man' or a single/married employee" can instigate marital status discrimination claims.
Careful recruitment and interview planning will go a long way toward avoiding claims of unfair treatment or discrimination. They also will get you off to a good start with promising new employees.