The fine line in the interview process

Shayda Zaerpoor Le, The Daily Record Newswire

Hiring effectively and following best practices in interviewing will help employers reap the benefits of a stronger talent pool, and reduce the occurrence of discriminatory hiring claims and the need for future terminations. There are many important components to hiring, such as deciding what to ask for on the employment application, whether to use background checks, and whether to conduct an Internet search about an applicant. Following is a look at which questions an interviewer may ask and which questions should be avoided.

Determine the job requirements

The best way to start crafting interview questions is to allow the job requirements to drive the process. What do you actually need to know about the applicant in order to evaluate them for the particular position? Employers must avoid soliciting or receiving "unwanted" information, because certain categories and circumstances cannot be used as a basis for making hiring decisions.

Asking questions that yield these types of information may force the employer into a position where it must prove, in a subsequent lawsuit, that such information was not used in making an adverse employment decision. This can happen even when the hiring choices have been based entirely upon legitimate grounds. These categories of "unwanted" information include national origin or citizenship, race, religion, age, marital status, arrests and convictions, union activity, sexual orientation, pregnancy, financial status, family structure, disability issues, military services, use of protected leave and more.

Family

There is a legitimate business need to determine if a person can work overtime, travel, or come in on weekends. However, asking a female applicant, for example, "do you have a husband to take care of your kids?" presumes too much, and requests too much. Whereas, a simple "can you work weekends?" will yield what the employer needs to know.

Similarly, questions such as "are you married?" or "when do you plan to start a family?" are problematic. While a person's family obligations may legitimately impact his or her availability or ability to perform the job, the questions must be tailored toward that specific end. "Are you available to travel frequently?", "can you work overtime on short notice?", or "can you work evenings and weekends?" are questions tailored to generate job-related information and avoid making personal inquiries.

Religion

Instead of asking an applicant about his or her participation in outside activities, or whether he or she is available on Sundays, an interviewer may ask, "are you able to work the schedule of the position, including overtime?" An applicant is free to answer yes or no without indicating the possible reason for their unavailability.

Disability

An applicant's physical limitations may significantly impact his or her ability to perform the job. However, the interviewer must not ask questions about medical history, even if a disability is visible or if the individual volunteers such information. For instance, if the position requires a commercial driver's license and the interviewer suspects that an applicant has epilepsy, instead of asking specifically about the condition, the interviewer might say, "this position involves driving and requires that the employee have a commercial driver's license and an excellent driving record; do you meet these requirements?" Instead of asking the applicant about his or her physical limitations, the employer should instead explain the physical requirements of the job and then ask if the applicant can perform the requirements with or without a reasonable accommodation (without asking if the applicant will require a reasonable accommodation to do the job).

Pregnancy

Employers are prohibited from discriminating on the basis of pregnancy, childbirth or related medical conditions. This prohibition considers current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth. An interviewer should therefore focus questions on the requirements of the job and ask if the applicant will be able to meet the necessary scheduling and performance requirements with or without a reasonable accommodation. Pregnancy-related questions or comments should be avoided altogether.

Other inquiries

With respect to national origin and citizenship, employers should avoid asking questions such as "what type of accent is that?", "what country are you from?", or "what nationality is your last name?" Instead, interviewers may ask the applicant "if you are hired, are you able to provide documentation to prove that you are eligible to work in the U.S.?"

When it comes to education and training, these questions should again be job-related, encompassing facts such as where the applicant went to school and what degree or certification he or she earned. In contrast, the date of graduation has a more tenuous relationship with relevancy, because it can be indicative of age, which is another problematic category.

In a similar vein, many employers will inquire about criminal history in an effort to protect employer assets and avoid negligent hiring claims. However, arrest records provide little valuable information because the absence of a resulting conviction can render the occurrence wholly irrelevant. In addition, minorities are arrested disproportionately in comparison to non-minorities, and hiring practices that disproportionately impact minorities may lead to discrimination claims. Therefore, questions regarding non-conviction arrest records should be avoided.

While there are many categories of "unwanted" information that an interviewer should avoid, the primary goal of each interview is to communicate the requirements of the position and to phrase questions in such a manner that they relate to those requirements, rather than the personal circumstances of the applicant. Following these tips will help an employer choose the right person without asking the wrong questions.

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Shayda Zaerpoor Le is an attorney with Barran Liebman LLP. She advises on a wide range of employment law issues. Contact her at 503-276-2193 or sle@barran.com.

Published: Mon, Mar 02, 2015

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