When was the last time you reviewed the employment discrimination laws before conducting an interview? Most hiring managers have every intention of complying with employment discrimination laws but find that the time needed to keep abreast of the nuances of employment discrimination in areas such as race, gender, religion, national origin, age, marital status, medical history, physical disability or criminal records hard to find.
Yet failure to properly prepare can lead to questions and conversations that should be avoided, a notion we deem as ‘illegal interview questions’. Generally, asking questions alone is not illegal unless the candidate belongs to a protected class and believes that he or she was rejected due to the information that was gathered. If this happens you will be forced to prove that employment discrimination did not occur. Interviewing with this in mind can be unsettling and it can be hard to proceed confidently during the interview process unless you have a solicitor by your side! But many questions that are necessary to screen for the position can tread on dangerous territory.
For example, if we cannot ask a person’s age, how do we find out if the candidate is above the minimum age requirement? What if it is important to check criminal or credit history due to the type of work involved? What if you want to make sure the candidate is able to work overtime due to the demands of the job? How do you determine a candidate’s citizenship?
To help you avoid common pitfalls and subsequent illegal questions in the interview process that could leave your company exposed to a claim for employment discrimination, begin by sticking to the following two practices:
Only Ask Job-Related Questions
Problems can arise from questions asked before the interview even begins! Innocent conversation on topics used to break the ice and make the candidate more comfortable can cause problems if the candidate is rejected. Go ahead and talk about the news, sports or weather, but stay away from personal topics such as children and spouses. A candidate can naively reveal personal information that you did not ask for. Politely steer the conversation back to job-related questions that you have (hopefully) prepared in advance of the interview!
Subject Each Candidate To The Same Hiring Practices
Keeping the interview fair and equal must start by using a job application that asks the same questions of each candidate. If you require testing, make sure that all candidates applying for the job are tested with the same instrument. In advance of the interview, write a job-related, detailed and validated position description. Based on the job description it is advisable to compile a list of solid interview questions that keep to the qualifications of the job. If possible, familiarise yourself with the laws that apply specifically to discrimination.
Blah blah – so what about these taboo questions I hear you say!? Well, here are a range of questions you might want to think about before inviting your next recruit into the building:
A Candidate’s Age…
The only time that it becomes important to know a person’s age is when you think the candidate may not be of legal working age. This information can be obtained by simply asking the candidate if they can prove that they are over 18 years of age.
A Candidate’s Criminal Record…
If there is a need to know about a candidate’s criminal record simply ask if the candidate has ever been “CONVICTED”. The objective is to steer clear of asking if the candidate was ever arrested, as this question is illegal. The candidate only needs to reveal a conviction. It is best to include this question on the application form.
A Candidate’s Disabilities…
There is a right way (legal) and a wrong way (illegal) to ask questions that are related to physical and mental disabilities. The difference between the two questions is that the illegal question can be construed as an attempt to disqualify a candidate.
A Candidate’s Physical Abilities…
After a thorough job evaluation identifies that the position requires specific physical ability, such as lifting, determine the amount to be lifted (such as 40 pounds) and how far and how often this must be done (such as 25 feet repeatedly during the day.) Then ask EVERY candidate: “This position requires that you lift 40-pound boxes and move them 25 feet repeatedly. Are you able to handle this aspect of the job?”
A Candidate’s Marital & Family Status…
Don’t ask if the candidate is married or if he or she has children. It is not relevant to the job. Sometimes an interviewer will want to find out if the candidate can handle the work schedule that the job requires. It is okay to ask the candidate if he or she is willing to work overtime, travel or relocate. You can also ask if there are any days or times that the candidate will be unable to work. It is not okay to ask if working on a particular religious holiday will be a problem. Don’t ask the candidate if he or she has any children or how childcare will be handled.
A Candidate’s Medical History…
Questions regarding a candidate’s medical history are considered discriminatory. A full medical exam can be part of the hiring process AFTER an offer has been made. Drug screening can be conducted prior to extending an offer. Make sure that your policy states that you do not hire anyone with a positive drug screening result.
A Candidate’s National Origin…
Don’t ask: “Where were you born?” Or “What is your native language?” You CAN ask if the candidate is authorised to work in the UK. You can also ask what languages a person speaks if this information is shown, after a thorough job evaluation, to be a requirement of the job.
The Candidate’s Gender, Sexual Orientation, Race, Religion Or Political Affiliations…
– Just Don’t Ask !!!
These types of questions are strictly taboo and should not be asked or discussed at any time during an interview. Once the applicant becomes an employee, the employer may collect this information for affirmative action programs and government record-keeping and reporting.
Avoid gender-stereotyping questions — sexual harassment suits can be filed no matter how many employees work for your company.
There you have it. A range of advice covering all the major areas of danger. Bottom Line – If in doubt, don’t!