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October 22, 2003
You Asked What?! Tips for Legally Compliant Interviews

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Legal restrictions regarding employment interviews have some employers tongue-tied. Here, our friends at Astron Solutions explore the voluminous legislation regarding legally compliant interviews.

Before you delve into the don'ts, we suggest one simple rule of thumb for interviewers: only ask questions that are job-related. The Equal Employment Opportunity Commission (EEOC) regulates such matters, and, in the event of a discrimination claim, they will look for an employer to demonstrate a job-related necessity behind the relevant questions.

Personal questions related to race, gender, age, national origin, religion, or disabilities are to be avoided unless they relate directly to a bona fide occupational qualification or are required by law. Remember that intent to discriminate is only part of the equation, as questions that may statistically weed out protected classes may also be considered discriminatory.

Asking different questions of different groups of persons (men vs. women, older vs. younger applicants) is also discriminatory. Ensure consistent hiring practices and focus discussion on the job in question, and the following caveats should be happily irrelevant.

Questions about race are almost always unlawful. According to the EEOC, requesting information "which discloses or tends to disclose an applicant's race suggests that race will be unlawfully used as a basis for hiring." The exception:
[E]mployers may legitimately need information about their employees' or applicants' race for affirmative action purposes and/or to track applicant flow. One way to obtain racial information and simultaneously guard against discriminatory selection is for employers to use "tear-off sheets" for the identification of an applicant's race. After the applicant completes the application and the tear-off portion, the employer separates the tear-off sheet from the application and does not use it in the selection process.
It is permissible to ask if an applicant is legally employable in the United States. Specific questions about national origin or U.S. citizenship are unlawful.

Setting restrictions based on English proficiency or accented English should be carefully considered. Again, a job-related need for fluent or unaccented English must be clearly demonstrable.

It is unlawful to ask gender-based questions during the interview process. Questions about marital status, children, childcare arrangements, pregnancies, etc. should not be asked.

While asking for an applicant's age or date of birth is not specifically prohibited, it may deter older workers from applying, or otherwise indicate intent to discriminate. Avoid inquiry through direct (How old are you?) or indirect means (What year did you graduate from high school?). If child labor laws are the concern, ask, "Are you over [x age]?" Age preferences or specifications in job notices or advertisements are illegal, making such terms as "recent graduate preferred" unacceptable.

Religious institutions may give preference to members of their own religion, but all other questions regarding religious beliefs or affiliation are prohibited.

The Americans with Disabilities Act (ADA) of 1990 specifies that questions related to an applicant's disability may only be asked after a conditional job offer is made. After a description of the interview process, employers may inquire if any setting or equipment will aid the applicant in the process. Likewise, they may inform the applicant about the essential functions of the job and inquire if the applicant is able to perform them.

Certain state and municipal laws forbid questions regarding an applicant's sexual preferences. As they can scarcely be job-related, they are strongly discouraged in any case.

Height and weight inquiries, unless directly job-related, may support other discrimination claims. Interestingly, State Representative Bryon Rushing of Massachusetts has recently proposed legislation that would prohibit employment discrimination on the basis of weight.

While arrests should be of no concern to employers, job-related questions regarding an applicant's conviction record are permitted. According to the EEOC, employers must consider three factors to justify use of a conviction record:
  • Nature and gravity of the offense for which convicted;
  • Amount of time that has elapsed since the applicant's conviction and/or completion of sentence; and
  • The nature of the job in question as it relates to the nature of the offense committed.
Judgments on financial status (via credit reports, etc.) should be restricted to applicants for jobs in which a candidate would be given access to financial information or funds. Otherwise, job-related necessity may be difficult to prove. Discrimination on the basis of bankruptcy is unlawful.

But that's not all! The list of topics that could land you and your managers in legal difficulties continues:
  • Questions about a candidate's worker's compensation history are inappropriate before an offer.
  • Questions about ownership of a home or vehicle are inappropriate.
  • Under the National Labor Relations Act, discrimination on the basis of union affiliation is unlawful.
  • Unless a driver's license is required for the job, avoid asking about it, as it could statistically screen out protected classes.
  • Questions about training received in the military and what branch an applicant served in are acceptable. Seeking specifics, such as nature of discharge or dates of service, is unacceptable.
  • Questions about any medical condition are inappropriate.
  • Rather than inquiring if an applicant smokes, describe the smoking policy, and ask if he or she can adhere to it. Some state laws prohibit an employer from excluding applicants for smoking.
  • Inquiring about association with present employees, whether to encourage or prohibit employment of their friends and relatives, may be found discriminatory.
  • Collecting names of emergency contacts is inappropriate in the pre-offer stage.
Want to steer clear of employment-related lawsuits? Remember that your company will be held responsible for the actions of its managers and employees, and train your managers on proper interview techniques.

This article was written by Astron Solutions, a New York-based consulting firm dedicated to the delivery of human resource consulting services and supportive technology. Visit their website at http://www.astronsolutions.com.

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