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Illegal Interview Questions

If you’ve undergone any training in hiring and interviewing, you’re aware of the areas that you’re supposed to avoid asking about during an interview:

• Race
• Sexual Orientation
• Religion
• National origin/birthplace
• Age
• Disability
• Marital/family status
• Criminal history
• Military background

However, you may be asking improper questions unintentionally, if you are not careful in how you phrase them. And even a seemingly casual icebreaker can land you in hot water and open up your company to legal repercussions. There are appropriate ways to find out the answers to any relevant questions you might have.

Relevant is the key word here. The first point to remember is that you are hiring for a specific position, and you should tailor your questions accordingly. Figure out what skills and characteristics will be important in the person filling that position. Then, focus on how to get the information you need to make the best hiring decision by asking the right questions in the right way.

For example, if you know the job you are hiring for will require the incumbent to work overtime or weekends regularly, you may assume that a married candidate with young children will not want the job. You cannot make that assumption, and cannot slant your questions. Concentrate on the needs of the job, not on the candidate.

WRONG: Do you have children? How old are they? What are your childcare arrangements?

RIGHT: This position requires travel on a regular/occasional basis; will you be able to travel for work when necessary? This position requires some/substantial overtime hours; will you be able to work overtime hours when required?

If you are concerned that the candidate may have a physical or mental disability that would preclude him from performing the job appropriately, you may not ask about the disability directly.

WRONG: Do you feel your disability is a problem? Do you have any serious illnesses or injuries?

RIGHT: Are you able to perform the essential functions of this position? This position requires lifting up to 50 pounds; will you be able to satisfy this requirement?

Even the most innocuous chit-chat during an interview can be used against you. Say you notice on a candidate’s resume that they went to the same university that you did. If you start discussing your experiences and ask what year the candidate graduated, you could later be accused of age discrimination.

It should be noted that if a candidate volunteers information about any of the above topics, that is fine. However, you should change the subject or steer clear of follow-up questions whenever possible.

The best way to avoid asking discriminatory questions is to create an interview checklist for each position. It should list what questions to ask and how to phrase the questions, to help ensure that you don’t inadvertently veer into unlawful territory.

When interviewing, make sure to ask the same questions of all applicants regardless of the applicant’s gender and without making assumptions about race or national origin:

• Asking different questions of different candidates brings up issues of subjectivity and discrimination.
• Asking questions of only some applicants can be construed as unlawful stereotyping.

Use structured interviews that ask the same questions of all candidates, and be able to explain why you pose certain questions.

Protecting your company from lawsuits begins well before an employee works for you. Asking the wrong application or interview questions—or asking the right questions in the wrong way—can land you in court and come with a hefty price tag. But if you have a plan and take the time to learn which questions are legal and which are not, avoiding litigation is easy.

At Ad-VANCE Talent Solutions, Inc., we know how to ask the questions that will deliver the best possible candidates to your door. To find out more, contact us today.

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