Even seasoned interviewers can inadvertently ask questions that lead to legal problems. That’s why the first rule in interviewing is "Innocent questions can lead to trouble."
"An interview is essentially a pretty casual conversation, particularly if it goes well," says Amy Berecek. And in a conversation, it’s just human nature to ask people if they’re married and about their family and where they’re from and about their national origin.
Don’t do it, says Berecek, an associate with Thorp, Reed & Armstrong in Pittsburgh.
Nine Types of Questions to Avoid
Berecek says that problematic interview questions tend to fall into nine categories:
- Marital status
- Family obligations
- National origin or race
- Age
- Religion
- Disability
- Arrests or convictions
- Financial condition
- Off-duty activities.
Berecek recommends avoiding such questions altogether because your hiring decisions could be challenged based on questions asked during interviews.
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Even if a question is not illegal, "it may show a discriminatory intent" if the applicant is not hired, she says. For example, if an employer asks a female applicant about her child care obligations and later hires a male for the job, the female could potentially file a discrimination lawsuit.
Similarly, an interviewer who realizes that he went to the same school as an applicant and asks in what year she graduated could create a legal problem if the applicant is age 40 or older and a younger candidate is hired, she says.
One bad question alone won’t necessarily result in a lawsuit being filed–or won. "It depends on how egregious the comment is or if the topic is prevalent throughout the interview," she says.
However, even if an applicant doesn’t sue, he or she might file a charge with the Equal Employment Opportunity Commission (EEOC) or a state agency, Berecek says, which would still cause the employer to incur the costs and hassles of dealing with complaints.
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Training Prevents Legal problems
Here are steps employers can take to minimize legal trouble associated with interviews:
Educate all interviewers. Frontline supervisors and other employees who interview applicants need to be trained on interviewing techniques. They should receive periodic reminders about what the company expects of them during the interview process, what types of questions are appropriate, and what types of questions should be avoided.
Don’t get too conversational. The best interviews are conversational and provide an opportunity to get to know the job applicant, but don’t let interviews become "too conversational," Berecek says. As mentioned above, getting too chatty about when an applicant graduated from high school, whether he or she is married, or what his or her national origin is could lead to trouble.
Check applicable state laws. Many of the nine categories of questions identified by Berecek are governed by federal laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and bankruptcy laws. However, employers also need to be familiar with state (and in some cases, local) laws.
She notes, for example, that some states prohibit employers from basing employment decisions on arrest or conviction records or on applicants’ "off-duty use of lawful products" (e.g., cigarettes or alcohol). Employers that ask about those issues may put themselves at greater risk for legal trouble.
In the next issue of the Advisor, an interview question checklist from BLR’s HR Audit Checklists.