Ever finish interviewing a job candidate and wonder if you’ve asked enough questions—or maybe asked too many? Worse, do you wonder what problematic questions others involved in the hiring process may have asked? The human resources department probably trains managers on the do’s and don’ts of interviewing, but in spite of that training, hiring managers sometimes delve into areas that can expose employers to discrimination claims. 
And worries aren’t limited to the interview stage. Application forms often don’t pass muster, since laws sometimes limit the information an employer can gather in that initial stage of the hiring process.
All those qualms can be eased by heeding some advice. Kimberly Klimczuk, a partner with the Skoler, Abbott & Presser, P.C. law firm in Springfield, Massachusetts, passed along guidance in a recent webinar for Business and Legal Resources titled “Top 10 Hiring Pitfalls: Legal Risks of Background Checks, Salary History Requests, Drug Testing, Social Media Snooping, and More.” Here’s a look at a few of her tips.
Don’t make assumptions
Some interviewers might take one look at a candidate and decide he or she can’t do the job, maybe because of some obvious impairment that may qualify as a disability. Klimczuk tells of an applicant for a sales associate position in a store. The applicant was a frequent shopper in the store and therefore a familiar face to the manager, who had noticed that the applicant had an arm injury. The manager rejected her on the spot, saying “You can’t work at this store with that arm.”
That was a “clear, blatant” case of disability discrimination under the Americans with Diabilities Act (ADA), Klimczuk says. A better approach to the applicant’s possible disability would have been to inform her of the essential functions of the job and ask if she would be able to perform them. If not, then the employer and potential employee could explore whether any reasonable accommodations could be worked out to enable her to do the job. In addition to prohibiting employers from making possibly faulty assumptions, the ADA prohibits employers from making disability-related inquiries until after an offer has been made
Klimczuk says the law allows an employer to ask candidates to describe how they would perform the job’s essential functions, and taking the candidate on a walk-through of the job can be helpful. For example, in manufacturing, the employer might take a candidate to the shop floor to show him or her how the job works, what needs to be lifted, etc. That way the applicant has a good understanding of how demanding the job will be.
Questions to avoid
Another hazard in the interview process involves asking questions unrelated to the job that can lead to discrimination claims. Various federal, state, and local laws prohibit discrimination based on certain legally protected characteristics including race, national origin, sex, religion, age, disability, and more. Interviewers need to be trained on topics that are inappropriate in a job interview because interviewers sometimes ask off-limits questions without thinking. For example, an interviewer might meet a job candidate and say, “That’s an interesting accent. What’s your nationality?” If the candidate isn’t hired, he or she might think national origin discrimination is to blame.
“It’s great for HR people to know all the rules, but if the people who are otherwise interacting with applicants don’t know the rules, then that can create just as much problems for an employer as an uneducated HR person,” Klimczuk says. If a claim ends up in court, a jury is likely to reason: “The employer wouldn’t have asked the question if it had no impact on the person’s job, so if you’re asking the question, people are going to assume there’s a reason for it even if it’s something that just seems like an innocent conversation starter,” she says.
Application no-no’s
An application can cause problems in a number of ways, Klimczuk says. Several state and local governments have passed laws restricting what employers can ask on an application, so it’s important for employers to make sure their applications—either paper or online—are compliant with the laws in their location.
“Ban the box” laws are getting more common, meaning employers are prohibited from asking applicants to check a box saying whether they have a criminal record. Criminal history inquiries “can be problematic because they tend to disproportionately disadvantage minorities,” Klimczuk says. Asking applicants to check a box on an application gives the employer no indication of how minor an offense was or how long ago it may have occurred.
Of course some employers, such as those that employ people to work with vulnerable populations or to go into people’s homes, are required to check criminal history. But the Equal Employment Opportunity Commission has said that in many jobs, there’s no benefit in asking about criminal history, Klimczuk says.
Another common application question—salary history—also is falling out of favor and is even unlawful in some jurisdictions. “This issue is gaining momentum,” Klimczuk says. “And the purpose is to try and help close the wage gap between males and females and minority and nonminority workers.”
The thinking goes that if women and minorities on average earn less than male and nonminority workers, making a salary offer based on past compensation perpetuates the problem.
Instead of asking for past salary figures, Klimczuk suggests informing applicants of the pay range for the job and explaining where the applicant would fit in the range based on experience and skills. Offering a range early in the process prevents an employer from going through the long hiring process only to find out that the employer and applicant are too far apart.
Another application mistake some employers make: requiring applicants to write in their Social Security numbers on the application form. Klimczuk reminds employers they don’t need a Social Security number at the application stage. If the applicant advances to the point of needing to pass a background check, the number can be requested then.