There are many legal issues employers face during the interview process. Job interviews are a potential legal land mine for discrimination complaints and lawsuits. Numerous federal laws prohibit discrimination in hiring practices, including the interview process. For example:
- The Civil Rights Act of 1964, commonly known as Title VII, is the grandparent of employment discrimination laws in this country. It says that employers cannot consider race, color, sex, religion, or national origin in any aspect of employment, including interviewing job applicants.
- The Age Discrimination in Employment Act prohibits discrimination based on age. You cannot discriminate against an applicant in an interview solely because he or she is over the age of 40.
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- The Equal Pay Act says that men and women must get equal pay for work that requires equal skill, effort, and responsibility, and is performed under similar conditions.
- The Americans with Disabilities Act (ADA) says you can’t discriminate against job applicants with disabilities. Qualified people with disabilities are entitled, by law, to equal job opportunities. ADA requirements affect the kinds of questions you can ask in an interview.
- The Pregnancy Discrimination Act amends Title VII to prohibit discrimination based on pregnancy, childbirth, or related medical conditions. The fact that a female job applicant is pregnant, therefore, cannot be discussed in an interview or enter into your hiring decision.
- The Immigration Reform and Control Act says employers cannot hire illegal immigrants. It also says, however, that employers cannot discriminate against applicants who are legal immigrants on the basis of their national origin or the fact that they are not American citizens.
- The Uniformed Services Employment and Reemployment Rights Act prohibits making past, present, or future active or reserve military service a factor in hiring decisions.
All states also have fair employment laws, and sometimes state laws offer employees more protection than federal laws. When that is the case, the stricter standard applies.
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A biased interviewer, an illegal question, or even a seemingly innocent question that elicits personal information unrelated to the job can trigger a discrimination complaint. Interviewers must be extremely careful in how they word their questions.
Basically, there are four rules of thumb:
- Ask only about subjects that are clearly tied to the job itself, such as work experience, particular skills, and educational background.
- Be consistent in your questioning. For instance, don’t pose certain questions only to female applicants. That’s a telltale sign of discrimination.
- Don’t say or do anything to indicate that certain jobs are traditionally filled by men, women, certain ethnicities, or any other specific group.
- Interviewers (both HR staff and supervisors) should be as balanced as possible in terms of diversity.
In an effort to make the interview process less subjective and less prone to discrimination claims, many companies have trained supervisors in interviewing skills. Others have written policies with detailed, step-by-step fair employment interviewing guidelines, including specific questions that should and should not be asked during the interview. Interview training and policies must strongly emphasize the importance of equal opportunity awareness.
The information in today’s Advisor is adapted from BLR’s PowerPoint® training session, “Interviewing Skills for Supervisors,” which is part of the HR Library from TrainingToday®.
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