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"If you ask a candidate illegal questions, you may find yourself answering rather than asking the questions when your company is sued for discriminatory hiring practices." Jennifer Wolfe, attorney |
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ONLINE EXCLUSIVE What questions should you never ask job applicants? By Jennifer Wolfe
Not what you'd expect someone you are interviewing to say, but if you ask illegal questions of a candidate, you may find yourself answering rather than asking the questions when your company is sued for discriminatory hiring practices. There are a wide range of laws protecting potential employees from discriminatory practices. The law governing hiring practices is comprised of thousands of pages of legislation and case law. What it all boils down to, though, are a few simple principles. Generally, don't ask questions about:
Nevertheless, employers may find themselves inadvertently asking illegal questions. Below are some examples and how you can rephrase them to avoid potential lawsuits.
Concerning Religion Do Not Ask: "Can you work weekends?" Instead Ask: "Are you able to work with our required schedule?" The Civil Service Reform Act of 1978 (CSRA) prohibits religious discrimination against a candidate during an interview. It is imperative to remember the general rule of thumb laid out in the CSRA: An employer cannot consider factors other than the job-related abilities or characteristics of a candidate during an interview. The question "Can you work weekends?" is likely to be interpreted by the candidate as a question related to religious practices because religious practices are the most likely source of a candidate's inability to work on weekends. To avoid the perception of bias against one's religious convictions, always link the question to the job requirements. The question "Are you able to work with our required schedule?" better links the requirement of working weekends with the requirements of the job and is, accordingly, more appropriate. Concerning Age Do Not Ask: "How old are you?" Instead Ask: "What are your long-term career goals?" The Age Discrimination in Employment Act of 1967 prohibits discrimination against individuals who are 40 years of age or older. Again, it is imperative to remember the general rule of thumb laid out in the Civil Service Reform Act of 1978: An employer cannot consider factors other than the job-related abilitiesor characteristics of a candidate during an interview. So long as the candidate is able to perform the specific requirements of the job, her or his age is irrelevant and consequently inappropriate to consider. However, it is appropriate to confirm whether or not a candidate is at least of legal age to work in a given jurisdiction. Concerning Gender Do Not Ask: "How do you feel about supervising men/women?" Instead Ask: "Tell me about your previous experience managing teams." Title VII of the Civil Rights Act of 1964 and the Civil Service Reform Act of 1978 prohibit gender discrimination against a candidate. Questions are highly suspect if they could be viewed as discriminating against a particular gender. Any question that does not directly relate to a candidate's ability or suitability to perform the duties of a specific job is risky. It is best to completely avoid questions that deal directly with characteristics or physical traits of a candidate that she or he cannot control, including gender. Concerning Health Do Not Ask: "How many sick days did you take last year?" Instead Ask: "How many days of work did you miss last year, and are you able to perform the essential functions of this job with or without reasonable accommodations?" The Civil Service Reform Act of 1978 (CSRA) prohibits discrimination against a candidate's handicapping condition during an interview. Although one may not be directly asking a candidate about a handicapping condition, it is imperative to remember the general rule of thumb laid out in the CSRA: An employer cannot consider factors other than the job-related abilities or characteristics of a candidate during an interview. By using the word "sick" in a question, one is directly inquiring into the health of a candidate. If the previous health history of the candidate does not directly relate to the specific job to which the candidate is applying, then you are walking a very fine line. By asking the question without relating to one's health, you avoid the perception of being biased against one's health condition. The question "How many days of work did you miss last year?" inquires into whether or not the candidate is reliable and consequently able to perform the required duties of the job to which she or he is applying.
Concerning Disabilities Do Not Ask: "How would you perform this job, given your disability?" Instead Ask: "Are you able to perform the specific duties of this position?" Title I and Title V of the Americans with Disabilities Act of 1990 (ADA) prohibit employment discrimination against qualified individuals with disabilities. The Civil Service Reform Act of 1978 (CSRA) also prohibits the discrimination against an "employee or applicant" based on a handicapping condition. Accordingly, in general, it is inappropriate for an employer to ask disability-related questions. By asking "How would you perform this job given your disability?" you lift the candidate's disability to the forefront of the interview. If you ultimately decide not to hire the candidate for another and valid reason, the candidate is likely to assume that she or he was not hired because of her or his disability. By not mentioning the candidate's disability and simply asking "Are you able to perform the specific duties of this position?" you are merely asking a job-related question. Concerning Criminal Background Do Not Ask: "Have you ever been arrested?" Instead Ask: "Have you ever been convicted of 'x'?" The United States Equal Employment Opportunity Commission (EEOC) mandates that employers, when establishing a business necessity, "should consider factors such as the seriousness of the offense, the time elapsed since the conviction … and whether the conviction would be likely to have a direct impact on the job in question." It is inappropriate to ask the candidate whether or not he or she has ever been arrested because many arrests do not result in a conviction. State law varies as to what questions are appropriate when asking about a candidate's conviction record. Accordingly, it is recommended that one confirm this with state law before conducting an interview. Concerning Military Background Do Not Ask: "Were you honorably discharged from the military?" or "Are you currently in the National Guard or Reserves?" Instead Ask: "Tell me how your experience in the military can benefit the company, and whether or not you have any upcoming events that would require extensive time away from work?" Inquiring into one's status as a member of the military may demonstrate an unlawful bias against those who serve in the military. Section 4311(a) of Title 38 of the United States Code prohibits discrimination against a person who is a current or past member of a uniformed military service. The federal law continues to mandate that a candidate must not be denied initial employment, re-employment, retention in employment, promotion or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application of service or obligation. Although "losing an employee to military service can be disrupting … it [is] crucial that [one] does [not] discriminate based on assumptions of a candidate's upcoming military commitments." Concerning Language Do Not Ask: "Is English your first language?" or "What is your native tongue?" Instead Ask: "What languages do you read, speak and write fluently?" Title VII of the Civil Rights Act of 1964 and the Civil Service Reform Act of 1978 prohibit discrimination against a candidate based on race or national origin. However, an employer is permitted to ask questions that relate to the candidate's ability to perform a specific job. "When job responsibilities mandate fluency in a particular language, it is proper to inquire about the candidate's ability to communicate in that particular language." It is inappropriate to inquire how the applicant attained fluency in a language. Concerning Location Do Not Ask: "Where do you live?" Instead Ask: "Are you able to start at 'x' o'clock in the morning?" The Civil Service Reform Act of 1978 (CSRA) prohibits the solicitation or consideration of "employment recommendations based on factors other than … records of job-related abilities or characteristics." Accordingly, an employer must inquire about one's availability instead of the location of one's residence because the candidate's availability directly relates to the specific job requirements. "Although hiring employees who live close may be convenient, [one] can [not] choose candidates based on their location [because this has no relation to whether or not a candidate can perform the specific requirements of the job]."
Concerning Financial Condition Do Not Ask: "Have you ever declared bankruptcy?" or "Do you own or rent your home?" Instead Ask: Nothing. The Civil Service Reform Act of 1978 (CSRA) prohibits the solicitation or consideration of "employment recommendations based on factors other than … records of job-related abilities or characteristics." Accordingly, "questions about a candidate's financial condition … are not permissible, unless financial considerations are directly relevant to the applicant's suitability for a particular position." Today, many employers like to run credit checks on a candidate. The Fair Credit Reporting Act allows an employer to run a credit check so long as the employer obtains written permission from the candidate. If you have specific needs for a position and you are concerned you may violate legal hiring practices, talk with an attorney to create a list of appropriate questions. Jennifer Wolfe, Esq., APR, is president of The Wolfe Practice, a boutique corporate and intellectual property law firm located in Cincinnati, Ohio. |
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