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To Ask or Not to Ask: Keep Interview Questions Legal

Written by Lori Brown

Recruiting staff, hiring managers and other interviewers are handed the task of identifying talent and fit of candidates with an employer through interviewing.  A sometimes forgotten challenge with this task is the determination of what are and are not legal questions to ask a candidate.  The scary part is that many interviewers lack the knowledge necessary to really decipher what questions to ask or not to ask.  As a result, there can be very serious legal ramifications for an employer.

In accordance with federal laws, employers cannot make hiring decisions based upon:

-Race

-Color

-Religion

-National origin

-Gender

-Pregnancy, childbirth, or a medical condition related to pregnancy or childbirth

-Age (federal law protects people who are 40 or older from discrimination)

-A qualified person with a disability

-Arrest records

-Veteran status

-Genetic information (effective November 2009); genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder or condition of an individual’s family members (i.e. an individual’s family medical history)

State laws have been passed that protect candidates from discrimination due to sexual orientation and gender identity.  While specific anti-discrimination laws apply to organizations of certain sizes, it is a good practice for the smallest of organizations and start-ups to be knowledgeable of and in compliance with these laws.  For most laws, the application begins with 15 employees.

Direct questions about any of these protected groups are an obvious no-no.   Seems straightforward, right?  Wrong!  Look at the interview questions below and decide whether they are legal or illegal.

How does your family feel about weekly travel?

Illegal.  Asking about family at all is illegal and a sensitive area.  If trying to determine if a candidate can travel as part of the requirements of the role then simply ask if they can do so.

 Are you a US Citizen?

Illegal.  Asking if they are a citizen of the US encroaches on national origin.  If trying to determine if a candidate is ‘eligible to work in the United States with or without any sponsorship’ then that should be what is asked.

 Do you have children?

Illegal.  Again, questions about family, children, spouse are all off-limits.  When making conversation with the candidate to build rapport, simply discuss their thoughts or views on the industry, or relevant factors specific to the job.

 I see you went to my alma mater.  What year did you graduate?

Illegal.  Any questions related to age, including asking when they graduated college or high school are illegal.  If building rapport, you could ask the candidate what they learned during their time at that school that would contribute value to the role and/or organization.

 Is English your second language?

Illegal.  Questions regarding languages should strictly be related to the job and only be in general to ask what languages they read, speak and write in.  Otherwise, this could be viewed as discrimination due to national origin

 How much longer do you plan to work before you retire?

Illegal.  Number of years left of working relates to age.  An appropriate question to ask is, “What are your long term career goals”

 How much sick time did you take last year?

Illegal.  Questions about sick days usage fall into a gray area of illness and disability.   A better question to ask is how much time did the candidate take off in a year at the previous/current employer.  This allows the interviewer to learn about the reliability of the candidate without being illegal.

 What were the circumstances of your discharge from the military?

Illegal.  The only question that is legal to ask in an interview regarding their military service is how their experience or what they learned applies to the requirements and responsibilities of the role for which they applied.

Now that you are aware of the complexities, it is important to take action to ensure that there is never the perception of discrimination by prospective employees. Start by regularly educate the members of your staff that will be conducting interviews at all levels in the organization.  Also, develop a specific list of legal questions to be asked of every candidate at each of the steps of the interview process. This will help to prevent your interviewers from asking illegal questions.

For additional information regarding fair employment practices, visit the US Equal Employment Opportunity Commission (EEOC) website at www.eeoc.gov.  Additionally, the Society of Human Resource Management (SHRM) provides a wealth of information in Human Resources law in areas including anti-discriminatory recruiting and employment practices, www.shrm.org .

When figuring out whether to ask or not to ask, start by checking policies and procedures already in place in your organization and then determine, if the question is directly related to the candidate’s qualifications and ability to meet the requirements of the role without soliciting personal information.

Lori Brown is the Healthcare IT Recruiting Manager for PricewaterhouseCoopers.

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