By: Melvin W. Haas, III
Constangy, Brooks, and Smith, LLP
A Google search on the phrase “best interview questions” produces 193 million results in less than a second. There’s lots of information about the questions that employers should ask in a productive interview, but what about those questions that shouldn’t be asked? There are lots of illegal questions that can get you into real trouble.
Applicants have specific rights during the hiring and interview process. Employment and labor regulations protect workers interviewing for a new job and after they’re offered and accept a position. Equal opportunity laws such as Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act (ADA) make it illegal for employers to ask questions regarding personal information. In addition, employers are prohibited from asking questions that request personal information that is protected by law, including race, nationality, religion and sexual orientation.
What does this mean in practical terms? The questions you ask must address the job requirements. Most illegal questions occur when an employer asks an applicant for information where the answer tends to affect a protected group, such as minorities, women, the disabled, legal aliens and people over 40 years of age, or where the question is not related to essential job functions.
6 Questions You Shouldn’t Ask
Here’s a list of 6 questions that you shouldn’t ask in an interview, and some suggestions of better ways to get information that’s really relevant:
- What church do you go to? What religion are you? – Questions about religion or church attendance aren’t the way to determine an applicant’s availability to work, and the EEOC has determined that pre-employment questions about availability have an exclusionary effect on employment opportunities for applicants who follow certain religious practices. With certain exceptions, employers are obligated to accommodate religious beliefs. Likewise, preferences for a specific religion can only be given by religious institutions.
What to ask instead – What days are you available to work? Explain the required work schedule and ask if the applicant can work within the schedule.
- How old are you? How much longer do you intend to work before you retire? – The Age Discrimination in Employment Act (ADEA) protects people over the age of 40 from discrimination. Questions about birth date, graduation dates, or other questions that seek to determine age are in violation. In addition, recruiting efforts that seek “recent graduates” can be interpreted as a deterrent to older applicants.
What to ask instead – Are you over the age of 18? What are your long-term career goals? Federal law provides restrictions for employees under 18. Questions about career goals are certainly relevant to the assessment of a candidate and not generally considered to set an age qualification.
- You look exotic, are you mixed race? – This one’s admittedly unlikely, but wrong on so many levels. Consideration of appearance is out of bounds unless a particular look is a “bona fide occupational qualification” (BFOQ) – for example, if the applicant is applying for an acting or modeling position. Discrimination based on race and color are prohibited by Title VII of the Civil Rights Act.
What is permitted – Employers are allowed to obtain information needed to create and implement an affirmative action plan. This information must be kept separate from other employee records to ensure that is not used as a factor in personnel decisions.
- Do you have children? Do you plan to have children? – Questions about marital status, pregnancy, and family obligations are off-limits and can be embarrassing for candidates. Title VII prohibits discrimination based upon gender and specifically precludes denying employment to a female applicant because she has children or may plan to have children.
What to ask instead – Are you available to work overtime on occasion? Will the travel requirements of the position be a problem for you? – These questions relate directly to the specific job requirements and to the candidates ability to fulfill them.
- Do you have any disabilities? – While mental or physical disabilities may be directly related to the applicant’s ability to perform the job, Title I of the ADA states that an employer may not discriminate against a qualified candidate who is disabled and stipulates that employers must make “reasonable accommodations” for physically or mentally impaired employees.
What to ask instead – Can you perform the specific duties of this position? Employers can ask an applicant if he or she can perform the essential functions of the job, with or without reasonable accommodation. Employers can also ask applicants to describe or demonstrate how they would perform the duty or task.
- When did you get out of rehab? – This is a complicated area, because employers are allowed to ask about illegal drug and alcohol use. Drug addiction and alcoholism are considered disabilities and protected under the ADA, so there’s a fine line between questions about use and those that are likely to elicit information about addiction or alcoholism.
What you can ask – In the past, have you ever been disciplined for violating company policies forbidding the use of illegal drugs or alcohol? The question relates only to previous work experience and does not question quantities used or whether the applicant suffers from substance addiction.
Unfortunately, these aren’t the only interview questions that can get you and your company into hot water. Other areas of concern include citizenship questions, language, physical attributes like height and weight, previous arrests, and even military experience and discharge. In many cases, how the question is phrased can determine whether or not it’s legal to ask. As a general rule, the questions you ask in an interview should relate to successful job performance, and avoid personal areas that could be interpreted as discriminatory on gender or racial lines, or against a particular nationality or minority group.
Do You Need to Learn More?
Georgia Employers’ Association’s Certificate Program in Employment Law continues through October 2014. W. Jonathan Martin, II of Constangy, Brooks and Smith will be the presenter for the next workshop, entitled Hiring Without Backfiring. Jonathan will address a range of subjects intended to help you with interviewing and hiring practices. A few of the topics for this workshop include:
- Title VII and EEOC Enforcement
- Age Discrimination
- Interview Do’s and Don’ts
- A Checklist for Interviewing Applicants and avoiding Litigation
Descriptions for all of the workshops and registration information is available on the GEA website. Please don’t hesitate to get in touch with us if you’d like more detailed information about the Certificate Program or about other services offered by GEA that can help your organization improve your HR processes and reduce risk.
Sources for this Article:
- Interview Questions: Legal or Illegal, Pacific University.
- 30 Interview Questions You Can’t Ask, HR World.
- 10 Questions You Should Never Be Asked in An Interview, Michelle Cash, Experience (TM).
- Federal Laws Prohibiting Job Discrimination Q and A, U.S. Equal Opportunity Commission.