Job Interviews: Stay Out of Legal Trouble
The job interview is filled with traps for the unwary employer. Here's what you need to know to avoid trouble.
The spontaneous and unpredictable nature of the job interview makes it an event ripe with hidden traps for the unwary employer. Things that you say with the most innocent intent can be misconstrued as prejudicial or can be used later by an unhappy applicant as fodder for a discrimination lawsuit.
For example, a casual discussion about a female applicant's home life could lead you to ask if the applicant plans to have children soon. If you don't hire the applicant, you could be vulnerable to claims that you discriminated against her based on her gender.
The interview does not have to be such a perilous place, however. If you follow two simple rules, you should avoid any trouble:
- Do not ask about any characteristic of the applicant that the law prohibits you from considering in making your decision. For example, don't ask an applicant what her race or religion is, because you are not allowed to consider these factors in making your decision. In the chart below, we give you some ideas on how to get information while staying within the bounds of the law. And don't panic if an applicant raises a delicate subject -- such as disability or national origin -- without any prompting from you. You can't raise such subjects, but the applicant can.
- Respect the applicant's privacy. Although federal law does not require you to do so, many state laws and rules of etiquette do.
So what can you ask? Before the interview, create two lists: one of all the tasks that the applicant will have to perform as part of the job and the other of all the skills and experience that you require for the position. This will help you focus on what you really need to know, which is whether the applicant can do the job. At the interview, you can ask the applicant whether she will be able to perform each of the essential tasks, and you can also ask her if she possesses the requisite skills and experience.
The lists will help you in a second way. If you use each list with each applicant, you can ensure that you are asking all applicants essentially the same questions. This will help you avoid the appearance of treating some applicants differently from others.
As for privacy, good taste is your best guide. Don't ask a female applicant whether she has ever had an abortion. Don't ask any applicant about his or her sex life. Don't ask any applicant about personal finances. Don't ask any applicant about political affiliation. You might also consider finding out what your state courts have had to say on the subject. Contact your state labor department for details.
Lawful and Unlawful Inquiries
The following chart provides examples of ways that you can get the information that you need without running afoul of anti-discrimination laws.
| Subject |
Lawful Inquiry |
Unlawful Inquiry |
| Age |
Are you 18 years of age or older? (To determine if the applicant is legally old enough to perform the job) |
How old are you? |
| Marital status |
Is your spouse employed by this employer? (If your company has a nepotism policy) |
Are you married? |
| Citizenship |
Are you legally authorized to work in the United States on a full-time basis? |
Are you a native-born citizen of the United States? Where are you from? |
| Disability |
These [provide applicant with list] are the essential functions of the job. How would you perform them? |
Do you have any physical disabilities that would prevent you from doing this job? |
| Drug and alcohol use |
Do you currently use illegal drugs? |
Have you ever been addicted to drugs? |
To read and printout a copy of the Form please link below.
Guideline: Questions to Ask Potential Hires During an Interview
You can download a free copy of Adobe Acrobat Reader here.
Copyright 2004 Nolo
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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.
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