Protecting your business from unnecessary litigation begins well before an employee works a single day. Asking the wrong application or interview questions—or asking the right questions in the wrong way—can land you in court and come with a hefty price tag. But if you have a plan and take the time to learn which questions are legal and which are not, avoiding litigation is easy.
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Here are just a few examples of common interview topics and the right and wrong questions to ask:
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Topic: Age
Wrong: How old are you? What is your date of birth? In what year did you graduate high school? How much longer to you intend to work before you retire?
Right: Are you over the age of 18?
Topic: Criminal history
Wrong: Have you ever been arrested? Have your ever been questioned by the police? Have you ever committed a crime?
Right: Have you been convicted of a crime, other than other than a marijuana-related crime, in the last ten years? Have you been convicted of a marijuana-related crime within the last two years?
Topic: Military background
Wrong: If you served in the military, were you honorably discharged? What branch of the military did you serve with?
Right: If you served in the military, what type of education and training did you receive? Did your military experience provide you with training that you believe will be an asset in this position?
Topic: Disability
Wrong: Do you have a disability? Have you ever taken disability leave from a job? Do you have any serious illnesses or injuries? Is any member of your family disabled?
Right: Are you able to perform the essential functions of this position? This position requires lifting up to 50 pounds; will you be able to satisfy this requirement?
Topic: Marital/family status
Wrong: Are you married? Is this your maiden name? Do you have children? How old are your children? What are your childcare arrangements?
Right: This position requires travel on a regular/occasional basis; will you be able to travel for work on this basis? This position requires some/substantial overtime hours; will you be able to work overtime hours when required?
Topic: Nationality/national origin
Wrong: Where were you born? Where is your family from? How long have you lived in the U.S.? Are you a U.S. citizen? What is your “native tongue”?
Right: Can you provide verification that you are eligible to work in the United States? What languages do you read, speak or write fluently? (This question is okay as long as this ability is relevant to the performance of the job.)
With respect to all questions, make sure to ask these questions of all applicants regardless of the applicant’s gender and without making assumptions about race or national origin. This is especially critical and especially for enquiries regarding marital/family status and nationality/national origin. Asking questions of only some applicants can be construed as unlawful stereotyping. Making an interview plan, which lists what questions to ask and how to phrase the questions, will help ensure that you don’t inadvertently veer into unlawful territory.