Most human resources professionals and others involved in hiring know how to steer clear of the most obvious off-limits questions on job applications and in interviews. Asking about someone’s race, national origin or ancestry, gender, religion, age, disability, etc. can quickly raise red flags related to unlawful discrimination. But less obvious questions also can put an employer on shaky legal ground. 
When employers need workers and need them fast, haste can lead to carelessness that can then lead to claims of discrimination. So the first step for HR is to make sure all involved in the selection process understand all the legally protected classes, Susan Fentin, an attorney with the Skoler, Abbott & Presser, P.C., law firm in Springfield, Massachusetts, says.
On the federal level, that means:
- Race, color, national origin, sex, and religion (covered under Title VII of the Civil Rights Act of 1964);
- Age (covered under the Age Discrimination in Employment Act);
- Disability (covered under the Americans with Disabilities Act);
- Results of genetic testing (covered under the Genetic Information Nondiscrimination Act).
In addition to the characteristics protected under federal laws, various states and local jurisdictions add other characteristics protected by law. Such characteristics include but are not limited to sexual orientation, gender identity, service in the military, veteran status, ancestry, arrest record, marital status, and whether someone is a victim of domestic violence.
Employers also need to keep more than the various protected classes in mind. For example, many states have laws prohibiting employers from discriminating against employees or applicants for their lawful off-duty conduct, which may include tobacco use as well as medical or recreational use of marijuana.
Other issues also need to be kept in mind. For example, “Making a decision based on an employee’s union membership or because they engage in lawful activities under state law would also set the employer up for a failure-to-hire lawsuit,” Fentin says.
Risky topics
Criminal history is another danger zone in applications and interviews. “Many employers still have questions [on applications] related to criminal activity, and those questions are barred in many states and localities,” Fentin says.
As of May, 27 states and more than 150 cities and counties have enacted some kind of “ban the box” legislation. Such laws prohibit employers from having applications that ask applicants to check a box indicating they have some kind of criminal record. Asking for criminal history information is seen as presenting a “no win” proposition to an applicant with a criminal record because an honest response is likely to doom the applicant’s chances, and a false answer is likely to be exposed in a background check.
Often state and local laws ban criminal history inquiries until after the first interview or a conditional job offer has been made. Some laws also require employers to take into account the age and nature of the offense and whether it’s related to the job.
Questions related to an applicant’s previous salary history also are frowned upon, Fentin says, since such information can perpetuate lower wages for women. “Many states and localities are banning such questions, some on the application and some barred until an offer has been made,” she says.
Best practices
In spite of all the risky actions that employers can trip over, the hiring process doesn’t have to be fraught with danger. Fentin advises employers on some best practices for the interview process. No. 1: Prepare. “Don’t read the application or resume for the first time in the interview,” she says.
Also, be careful in gathering and recording information. “Use a form where the questions that the interviewer is going to ask are written down with space for the candidate’s answer,” Fentin says. “Ask the same questions of all candidates.”
Fentin also instructs interviewers not to write on the resume. She also says to be sure that any notes are not vague or ambiguous. “Notes should not reflect any information related to the candidate’s membership in any protected class,” she says.
“Ask open-ended, behaviorally based questions that are related to the work that the employee will be doing,” Fentin says. Also, interviewers also should allow time between interviews to assess the candidates, and they should record their thoughts promptly.
Also, she says engaging in small talk with candidates can be dangerous, since such conversations might result in the disclosure of information that could be used against the employer if the candidate isn’t hired.
Need to learn more? Hiring touches many types of employment practices and policies—from pre-employment line of questioning on applications and during interviews to background checks and post-offer drug testing to employment verification procedures for meeting I-9 requirements. If any of these policies and practices are out of whack, your company could face substantial risks of liability for claims of discrimination under a number of federal laws. Susan Fentin will present “Avoiding Hiring Landmines: Navigating Pre-Employment Inquiries, Background Checks, Drug Testing, I-9s, and Other Legal Tripwires” at the 22nd Advanced Employment Issues Symposium in Las Vegas on November 17. This intensive 3-hour will be broken into distinct sections, addressing every aspect of the hiring process. For more information on AEIS, click here.