Job interview questions can lead to discrimination claims
If you’ve ever conducted a job interview, you know firsthand how tempting it can be to ask as many questions as you can to get to know candidates both professionally and personally. It’s understandable that you may want to know about their family status, ties to the region or even their ethnic heritage. You not only want someone who can do the job; you also want to get to know someone in a person way to try to determine if they will be a good fit.
But in getting at that information, many employers find themselves in hot water for asking questions they shouldn’t, questions that, in fact, are considered discriminatory by law. As a rule of thumb, it’s best to avoid asking any questions about candidates’ personal lives, such as age, nationality, family, political leanings, sexual orientation, health and physical abilities. Essentially, you need to avoid asking anything not directly related to the abilities and skills needed to perform the job.
Job interview questions to avoid
Here are ten troublesome questions to avoid — and alternatives to help you get the information you really need.
#1: Are you married? The question seems innocent enough, but employers who ask it could be accused of fishing to determine sexual orientation or to speculate about future pregnancies — again, pretty personal information that could be used to discriminate against a prospective employee.
#2: How do you feel about supervising the opposite gender? The interview should be focused on a candidate’s ability to handle the job, not the gender or sexual orientation of the candidate.
#3: Have you ever been arrested? The answer to this question is of no consequence; more importantly, it’s illegal to ask in most contexts. What is relevant — and legal to ask — is whether the candidate has been convicted of a crime. Even then, if a candidate answers yes, that answer can only weigh in your hiring decision if it was for a crime that is relevant to specific job duties in your industry and the jobsite. For example, that means you can’t refuse to hire someone as a bank teller for a Disorderly Conduct conviction 10 years ago but you could likely refuse for a Fraud conviction.
#4: Do you have any disabilities? The Americans with Disabilities Act (ADA) firmly prohibits employers from asking this question of candidates. Instead, interview questions should focus on what qualifies someone for a job and the specific experience and skills that are relevant to job performance.
#5: How many days were you out sick in the past year? This question delves into health issues and potential illnesses. Even if a candidate does have some form of long-term illness, the ADA makes it illegal to ask. If you’re trying to get a feel for a candidate’s tendency toward absenteeism, you can ask how many days they were out last year. You just can’t ask how many of those days were due to illness.
#6: What does your spouse do? The answer has nothing to do with whether interviewees can perform the job. If they volunteer information about a spouse, it would be OK to follow up on it, but it’s best not to initiate any discussion about a spouse, and do not veer into questions about health/pregnancy.
#7: How old are you? So long as a candidate has the skills and experience necessary to perform the job, age is irrelevant. If you are concerned whether a candidate is old enough to be legally employed, you can simply ask whether the applicant is age 18 or older.
#8: How long do you plan to work before you retire? Unless your employees work under contracts, they can quit any time for any reason, be it retirement, another job, whatever. Questions like this don’t get you any closer to identifying the right employee for the job. It’s best to focus on only the questions that will help you make a good hiring decision.
#9: Do you have religious holidays that you observe? Because most companies’ holidays are based on a Christian calendar, this is a growing issue for American employers with diverse workforces. But those religious questions are taboo. A more appropriate way to learn whether the work schedule is going to be a problem is to ask exactly that. Explain the hours, the company holidays and personal leave policies and ask candidates if they will be able to work the usual schedule of the business.
#10: Do you smoke or drink? Some employers may want to know whether they’re hiring someone who may need a number of breaks during the day. Still, you can’t ask. But you can ask whether a candidate has ever been disciplined in past positions for violating company policies concerning alcohol and/or tobacco use. There are exceptions to this rule for companies that are specifically and fundamentally anti-tobacco and anti-alcohol but, generally speaking, avoid these topics.
If you really want to learn about a candidate, ask open-ended questions that allow them to elaborate and share on their own. Here are four excellent questions that will tell you volumes about a candidate and how they may perform and fit into your company.
#1: Of your previous work experiences, which position did you like the most and why? You can also ask this question in the reverse: Which position did you like the least and why? Answers to these questions could reveal how well candidates work with groups or on their own, job characteristics that are important to them and a host of other insights.
#2: Tell me about yourself. It’s not so much a question as it is an opportunity for candidates to share whatever they wish. They may ask if you want to know more about them personally or professionally. You can put it back on them by suggesting they share anything they would most like you to know about them.
#3: What is it about you that makes you especially qualified or knowledgeable in performing this job? This question gives candidates an opportunity to share personal information about themselves that may be relevant to the job without you asking questions you shouldn’t be asking.
#4: If money weren’t an issue, what kind of work would you most like to do? Responses to this question will tell you about a prospective employee’s inner dreams and how those dreams may relate to the work they would be doing for your business.
Rules help prevent future problems
The rules surrounding job interviews may seem cumbersome on the surface, but they exist to safeguard not just employees but also employers. Sticking to the rules — and the real purpose of the interview — helps you avoid far more cumbersome discrimination claims down the road.
By Joe Veenstra, Employment Law Attorney at Johns, Flaherty & Collins. For more information about employment law in Wisconsin, call him at 608-784-5678.