conclusion of a successful interview with a prospective employee

Avoid Legal Troubles Caused by Asking the Wrong Interview Questions

The interview is one of the most important steps in determining whether or not an applicant is a good fit for your company, but even during this early stage, there are pitfalls you need to avoid. For example, consider this scenario: You’ve spent a considerable amount of time reviewing resumes to develop a short list of qualified applicants for the job opening in your company. As you wait for the first applicant to arrive, you scan her resume and notice that she volunteers at an elementary school in her spare time. When she enters your office, you break the ice by chatting for a time about her volunteer work and asking if she has any children of her own.

This type of casual encounter would be considered harmless in almost every other instance, but if you were to have this conversation during a job interview, you could be subjecting your company and yourself to the possibility of a lawsuit. If you decide not to hire the applicant, for example, she could assume it’s because she admitted to having four young children and you thought the job would be too much responsibility on top of her family. And because you did ask her about children and then declined to offer her the job, she has enough of a discrimination case that you could find yourself in court.

Consider the case of a Corpus Christi Sears store which failed to hire a 61 year old applicant. The man possessed 27 years of experience, but he was not hired as a result of his age. The U.S. Equal Employment Opportunity Commission (EEOC) forced the store to pay $30,000 to settle with the man. Abercrombie & Fitch also found itself in legal hot water as a result of its discriminatory hiring practices (mostly religious in nature), and it was forced to pay nearly $40 million. Even after the massive loss, Abercrombie & Fitch violated anti-discrimination laws once again and found itself facing a lawsuit from the EEOC (again for religious discrimination), highlighting the fact that some discriminatory practices aren’t as obvious as you might think.

Not all discrimination cases will result in a lawsuit or massive settlement, of course, but you probably can’t afford to put your company at risk. These cases happen frequently (The EEOC’s website is full of discrimination lawsuit examples.), and even if you win the case, your reputation will likely suffer some severe damage in the process. Therefore, there are certain questions that you must avoid asking during an interview. Do not ask an applicant…

  • How old they are. Instead, ask if they’re over 18.
  • About their religious beliefs or whether they observe certain religious holidays.
  • About their marital status, family life, or daycare arrangements.
  • Any questions about race. Instead, ask if they are capable of providing proof of eligibility to work in the U.S. upon request.
  • About any education or training that does not pertain to the job description.
  • About their health. This includes questions about medical history, weight, diseases, etc.
  • About their native language or birth place. Instead, ask- if it is relevant to the job – if they are fluent in the required language.
  • About their arrest record. In some states, however, it may be permissible to ask if they have ever been convicted of a crime.
  • For financial information. In some states it may be acceptable to run a credit check with the applicant’s permission.
  • About current or anticipated pregnancy
  • Any questions that specifically target the applicant’s gender
  • Any questions concerning physical or mental disabilities. Instead, ask if the applicant is capable of performing the essential job duties.

Returning to the above example of the mother of four young children, it’s understandable that you might be tempted to take her family into account when deciding not to hire her. However, you are absolutely not permitted to do so. In fact, even if she volunteers information about her family life, you are not supposed to include that information in your decision not to hire her. It’s understandable that you might question her ability to juggle a demanding family and a time-consuming job, but making arrangements is her responsibility. It might be hard, but you’ll have to accept the fact that, unless you hire her and her work performance is terrible, her hectic life is none of your concern.

When developing questions to ask employees in the interview, be sure not to make them too personal, or you could find yourself on the wrong end of a discrimination lawsuit. If a question does not relate directly to the job description, then it’s probably best that you exclude it from the interview.