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The Legal Pitfalls of Interviewing: Make Sure Your Company is Compliant

The Legal Pitfalls of Interviewing: Make Sure Your Company is Compliant

Finding great candidates for your business may be challenging, but the legal landmines associated with interviewing candidates can be truly hazardous. Compliance with state and federal laws during a company’s interview process is key to protecting a company, and any individual handling interviews should be educated on proper and legal questions that may be asked of job applicants.

Although there are many laws that restrict information one can seek from interviewees, some of the most important ones include Title 7 of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin; the Older Worker Benefit Protection Act of 1990, which forbids questions about a person’s age and other facts in pre-employment questioning; and the Pregnancy Discrimination Act, which prohibits discrimination against female applicants and employees based on pregnancy, childbirth or a medical condition related to pregnancy or childbirth. It’s also important to keep in mind that the Family Medical Leave Act prohibits discrimination against pregnant women and parents who take leave for a baby, sick child, aging parents, etc., so questions seeking an applicant’s likelihood to take advantage of this law would also be prohibited. To properly prepare for an interview, a thorough review of the various state and federal laws that could impact a company’s interview process should be done in advance of any candidate meetings, and legal counsel should be consulted if there is uncertainty.

Some of the most common questions can actually be the most legally problematic for an interviewer. However, with proper planning and creativity, a successful interview can be ensured. Consider the following:

  1. “Are you a U.S. Citizen?” This is an improper question, since employers aren’t allowed to ask about national origin, such as citizenship status. Employers can ask if a candidate is permitted to work in the United States.
  2. “How old are you? When did you graduate college?” Questions aimed at finding out a candidate’s age are improper. However, asking if the candidate is “over the age of 18” makes the question acceptable. Most likely, the resume submitted by a candidate (if applicable) includes graduation information and can be reviewed for more detail.
  3. “Do you have children? How many and what are their ages? What are your plans if you get pregnant? What childcare arrangements do you have? Should you be referred to as Mr./Mrs./Ms.? Are you single? Married? Divorced? Engaged? Does your spouse work? What does he/she do?”
    Employers need to avoid questions that delve into the personal life of a possible employee, such as their marital status and whether they have children (or plan to have children). Instead, the questions can be posed as: “Are there any restrictions that prevent you from traveling? Do you have any commitments that conflict with your work schedule? Do you anticipate any work absences on a regular basis? Can you relocate if necessary? Are you able to work overtime?” Even these permitted questions are likely to elicit personal information about the candidate, their children and marital status. The interviewer should be cautious not to start asking improper questions, even if the candidate is the one who opens the door to legally sensitive topics.
  4. A candidate’s ability to physically perform a job is essential to whether or not he or she should be hired. However, asking “Do you have any disabilities?” or “What is your medical history?” is not appropriate. Consider asking a candidate “Can you perform the specific duties of the job?” instead, and talk about some of the expected physical demands.

There are many other categories of questions that should also be handled carefully, such as sexual orientation, race and religion. Unless relevant to the job, there should be no reason to seek information on these topics. Additionally, it’s recommended that the same questions be asked of male and female candidates in order to avoid any suggestion that questions are intended to elicit responses from certain candidates only.

Experienced interviewers can also usually obtain the information needed about candidates through more creative inquiries. Consider asking about preferences in movies, television and books; where a candidate might dream of visiting one day; or even favorite memories of a place the candidate has visited. This may give you a lot of insight into your potential hire without creating legal risk.

Companies should take time to prepare interview questions in advance and, in addition to thinking about legal limitations, consider the most important information actually needed to find the best candidate for the job. This will not only help cut down on the number of candidates requiring interviews, but will also help the focus remain on the essential skills and qualifications that are needed in the right candidate. Avoiding questions that are inapplicable to the job itself can limit the likelihood of the interviewer getting into trouble and will ensure a professional and streamlined interview process.

Whether seeking insight about a person’s personality, work ethic or skills, interview questions should be designed to help your company find the right man (or woman) for the job, and not result in legal complications that can be easily avoided.

By Ericka Adler of Roetzel

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