Every so often we find
the need to revisit a topic of great importance. This is one of those times. While most of our clients are aware that, in
the hiring process, it is illegal to discriminate against a candidate based on
nationality, religion, age, marital or family status, gender, health and
physical ability, military status and, in some locations, sexual identity and
criminal background. Many of our clients don’t realize that seemingly-benign
questions can lead a candidate (or court of law) to conclude that you are
intentionally or unintentionally doing just that – discriminating against a
For example, one of
our clients asked a few seemingly harmless questions of two candidates they
were interviewing for an HR position. It
is clear the questions were intended to be “get to know you” type questions,
such as, “So, are you married? What does
your husband do? Do you have kids? How old are they?”
While I’m certain that
client did not intend to discriminate against the candidates, the candidates,
being HR professionals, were highly offended and withdrew from consideration
for the position. It is also quite
possible that one or both of the candidates may pursue legal action.
Don’t let this happen to you. If your
questions or screening methods could be viewed as having an adverse impact on a
protected class, you should avoid asking them. Here below is a fairly
comprehensive list of questions and types of questions you should NOT ask. You
might want to print this out and review it just before you conduct your next
DO NOT ASK:
· How old are you or how much longer do you plan
to work before you retire?
· What is the date of your high school
· When or where were you, your parents, your
· What is your original or maiden name?
· How long have you lived at your current
· Questions about lineage, ancestry or national
· What is your religion or religious practices?
· Questions about race, complexion of skin or
attitude about working with co-workers of different race.
· Citizenship (although you may ask if he or she
has the legal right to work in the United States).
· Questions about physical characteristics
(i.e., weight, height, color of hair, etc.).
· What is your marital status?
· Do you have or intend to have children?
· What’s your gender or sexual identity?
· How do you feel about managing a man/woman?
· Any medical information (general health,
disabilities, past use of sick leave, use of workers’ compensation benefits).
· Do you smoke, drink, take drugs?
· Dates of military service, type of discharge,
or if receiving veteran disability pension.
· Listing of clubs, societies or lodges where
applicants have membership.
· Do you belong to a labor union?
· Do you own a car/home?
So, what is okay to
ask? While it is not acceptable to ask the
questions above, there are often related questions that are perfectly legal to
ask, such as:
· What is your name?
· What is your address?
· Our hours are
(describe). Are there any factors, such as commute, access to reliable
transportation, personal commitments, that would make it difficult or
impossible for you to work our required schedule?
· What educational
institutions did you graduate from and what degrees or certifications did you
earn? (Do not ask dates of completion.)
· Are you legal to work
in the United States? (Do not require documentation until post-hire.)
· What languages are you
fluent in for speaking/reading/writing?
· What days are you
available to work?
· Are you able to work
our required schedule?
Medical Status or Disability:
· This position requires
the following physical abilities. (Describe.) Are you able to perform the
duties of the position?
· Are you over 18 years
· Are you a military
· What military skills
and experience are you able to bring to this position?
· (If a security
clearance is required or if a clean criminal background is required for
institutions such as financial institutions or day-cares/schools): This
position requires a security clearance and/or a clean criminal background. Do
you anticipate this being a problem for you?
Beyond these tricky
areas of inquiry, there are many creative, insightful questions you should
consider during an interview. And, whenever possible, we encourage you to ask
them in a “behavioral interview” format which is simply posing the question in
the following format: “Tell me about a time when (question).” This will reveal
the most detail about the candidate’s past experiences, which are always the
best predictor for future behavior.
Also during the
interview process, it’s important not to require unnecessary documentation,
such as a birth certificate, naturalization or baptismal records or require a
photograph during the interview process. All legal documentation should be
obtained and processed after the employee has been offered the position.
Do you have a favorite question and wonder whether it’s legal to ask? Shoot us
an e-mail or don’t hesitate to call us.
By Claudia St. John,
SPHR, SHRM-SCP, President – Affinity HR Group, Inc.