Interviewing

The potential for liability at the interview stage in the hiring process is tremendous. Under Title VII of the Civil Rights Act of 1964 and other federal and state laws, it’s illegal to discriminate against applicants on the basis of race, color, sex, religion, national origin, citizenship, disability, and age. Some states have more protected categories, such as sexual orientation and marital status.

Consequently, any question—regardless of the interviewer’s intent—on any of those topics should be avoided to ensure that an inference of discrimination isn't raised when an applicant is rejected. A stray comment by the interviewer that offends an applicant can spell big trouble for an employer.

Here are some dos and don'ts for successful interviewing and avoiding legal trouble.

Interview Dos

Provide training to employees who will be conducting interviews. In addition to guidance on how to conduct interviews, employees who will be interviewing job candidates should be informed about the appropriate subjects for inquiry and topics to avoid.

Ask the same questions of all interviewees. By asking the same questions of all applicants, you can avoid a claim that any one particular individual was singled out because of a protected characteristic. Preparing a written questionaire can help ensure consistency and can be especially helpful to supervisors and managers who are not experienced with interviewing job candidates.

Limit questions to job-related areas. Interview questions should focus on the education, experience, and abilities of the applicant and her suitability for the position.

Maintain detailed, careful notes. Notes taken during the interview should be objective, detailed, factual, and concise. Avoid gratuitous comments unrelated to the applicant's experience and qualifications for the position. Always keep in mind that notes created during the interview process can and will be provided to the applicant if a lawsuit is filed later.

Interview Don'ts

Avoid promises. An interviewer shouldn't make any promises. Simple comments about the hiring process or job security may later bind the employer.

Avoid questions or comments about an applicant's disability. Don't ask about medical conditions, past hospitalizations, past medical, psychiatric, or psychological treatment. Don't ask about prescription drugs or medications or the number of days he was sick during his previous employment. You may, however, legitimately ask about his general history of absences. You may ask whether he's able to perform the job, with or without reasonable accommodation, when he has an obvious disability or when all applicants are asked the same exact question. Also, if an applicant's disability is obvious or he volunteers that he has a disability and you reasonably believe an accommodation will be needed, you may ask him if he needs a reasonable accommodation.

Avoid questions about a applicant's height or weight. Height and weight restrictions have been challenged as having an unlawful adverse impact. EEOC guidelines require these restrictions to be job related and consistent with business necessity. For example, a position for a fashion model might impose a height or weight limit.

Avoid questions or comments about an applicant's history of workers' comp injuries. Don't ask an applicant whether she previously was injured on the job. Don't ask an applicant whether she previously filed a workers' comp claim.

Avoid questions or comments about an applicant's race, national origin, age, religion, military status, gender, marital status, physical attributes, or sexual orientation. Don't ask whether English is an applicant's first language. If fluency in a particular language is a required job responsibility, however, you may inquire about an applicant's ability to speak, read, and write the language. In addition, you should avoid questions or comments about pregnancy, family plans, number of children, and child-care arrangements.

Avoid questions or comments about an applicant's arrests. The Equal Employment Opportunity Commission (EEOC) takes the position that such inquiries have a disparate impact on minorities. If relevant to a particular position, you gemnerally may investigate an applicant's criminal convictions. However, make sure you follow EEOC guidelines and check your state laws for any restrictions.

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