Recruiting and interviewing are among some of the toughest skills for many new hiring managers to acquire. Analyzing a candidate’s ability to perform, the likelihood of them committing to the team for the long-term, and their fit within the company culture, all within the span of a 45 minute interview, is a challenge. A hiring manager should focus on developing a carefully curated list of questions for each position. These questions should seek to gather as much information as possible about the candidate. However, regardless of the position, there are some questions that are legally off limits. Below are some areas in which an interviewer should tread very carefully, or not at all.
How old are you? When were you born? What year did you graduate? How long have you been in the work force?
What are your long-term career goals? Are you over the age of 18?
Age is a protected class under the Older Workers Benefit Act and discriminating based upon it will land you in hot water.
MARITAL & FAMILY STATUS
Are you married? Do you have children? Who will take care of your children while you’re at work? Do you plan on having more children?
Would you be able to work a 9:00 AM to 6:00 PM schedule? Would you be willing to relocate if necessary? Would you be willing to travel as needed by the job? Would you be able and willing to work overtime if necessary?
A candidate’s familial status should not be considered when making a hiring decision. There are federal laws that relate specifically to women including the Pregnancy Discrimination Act (PDA) -- prohibiting discrimination on the basis of pregnancy, childbirth, or related medical conditions, and the Family and Medical Leave Act (FMLA) -- prohibiting discrimination against pregnant women and parents who take leave from their employment responsibilities to care for a newborn baby, sick child, or aging parent. Many states also have anti-discrimination laws geared toward protecting a woman's right to fair employment. What may be considered is their ability to work a specific schedule and meet the demands of the position. These alternate questions are okay to ask, as long as they’re asked to all applicants.
DISABILITIES & QUESTIONS RELATED TO HEALTH
Do you have any pre-existing health conditions? Are you on any medication? What are the nature and/or severity of any disabilities that you have? How’s your health?
Can you perform the essential functions of the job, with or without reasonable accommodation? Are you able to lift 50 lbs (as long as the job requires this)?
A candidate’s health and disabled status are protected under the Americans with Disabilities Act (ADA) which prohibits discrimination in the workplace based on a person's physical disabilities, including a prohibition against pre-employment questioning about the disability.
Have you ever been arrested? Have you ever spent time in jail? Have you ever been caught drunk driving?
Have you ever been convicted of a crime? Be careful with this one. The answer should only be considered when a conviction is for a crime which will have a potentially negative impact on the business. An example would be a fraud conviction when the position involves handling funds or sensitive personal information.
There is a growing movement toward “banning the box,” which prohibits employers from including a check box on their applications which asks if applicants have a criminal record. At this point, nine states, DC, and fourteen cities and counties have adopted this stance. It does not prevent employers from asking about criminal convictions during an interview.
Do you own your own home? Have your wages ever been garnished? Have you ever declared bankruptcy?
Credit references may only be used if in compliance with the Fair Credit Reporting Act and Consumer Credit Reporting Act. The candidate must be provided with the necessary notices and disclosures and give their written permission to procure the consumer report. If, after reviewing the report, the employer decides to take adverse action, they must notify the candidate prior to taking such action. It’s important to note that ten states have passed laws prohibiting employers from pulling credit reports at all. The latest recommendations advise limiting this assessment step to only positions where the the candidate will be involved in accounting or money management or where there is potential for fraud and embezzlement.
What is your religious affiliation? What religious holidays do you celebrate? Do you attend church every week?
Weekend and holiday work is required. Will this pose any difficulties for you?
Federal law (Title VII of the Civil Rights Act) and the laws of most states prohibit an employer from engaging in religious discrimination.
How long has your family been in the U.S.? That’s an unusual name—what does it mean? How did you learn to speak Chinese?
Are you eligible to work in the U.S.? What languages do you read, speak or write fluently? This question should only be asked if it’s relevant to the performance of the job.
Federal law prohibits discrimination against national origin.
USE OF LEGAL & ILLEGAL DRUGS
Do you drink socially? Do you smoke? Have you ever been addicted to illegal drugs? What illegal drugs have you taken?
Have you ever been disciplined for violating company policies about the use of alcohol and tobacco products? Are you currently using any illegal drugs?
Concerns about drug, alcohol or nicotine addictions are valid as they can impact an employee's quality of work and the rates of a company's health insurance coverage. However, an employer should be mindful to frame questions about these potential problems in a careful manner. Also, under the Americans with Disabilities Act (ADA), recovering alcoholics don’t have to reveal any information that might hint at their status. It's also illegal to question job applicants about when they last used illegal drugs, although asking if they’re currently using illegal drugs is permissible.
Was your military discharge honorable or dishonorable? Why were you discharged? Will you be deployed anytime soon?
What type of training or education did you receive in the military? What did you do in the military? If the applicant is currently serving in the National Guard or Reserves, an employer is not permitted to ask them if they are going to be deployed.
State and Federal Equal Employment Opportunity (EEO) laws do not prohibit an employer from asking about the type of discharge. However, asking a veteran to reveal the nature (“characterization of service” in military parlance) of their discharge is considered private information, similar to asking someone “what kind of a disability do you have?” Therefore, it’s advised to avoid any questions regarding discharge. Law also prevents and employer from discriminating based on current military service in the National Guard or Reserves.
One final point, when it’s all said and done, a hiring manager really only needs to know if the candidate can perform the necessary duties required for the position. If they can’t, there is no need to know the why. Why can lead to discrimination, which leads to legal issues.