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 protected class.
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 interview.
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 graduation?
· When or where were you, your parents, your spouse born?
· What is your original or maiden name?
· How long have you lived at your current address?
· Questions about lineage, ancestry or national origin.
· 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:
General:
· 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.)
Nationality:
· 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?
Religion:
· 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?
Age:
· Are you over 18 years of age?
Military Status:
· Are you a military veteran?
· What military skills and experience are you able to bring to this position?
Criminal Background:
· (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.
