When I get calls from friends and acquaintances who just finished a job interview, after a quick greeting, they tell me their situation and then comes the inevitable question, “Should they [the interviewer] have asked me that?”
When interviewing job candidates there are a lot of questions you can ask; however, the list of things you should not ask applicants is long and growing. And like everything related to employment, it varies by state.
It is important to know what you can and what you should not ask. You want to establish rapport, but it is a slippery slope into the realm of illegal or at a minimum inappropriately invasive. And it gets really tricky when the applicant brings up a “forbidden” topic.
In this article we will discuss the most common categories of questions and comments to avoid when interviewing job applicants. Although not all are applicable to all states, they are worth knowing and avoiding even if they are not yet problematic in your state. Employment regulations change frequently.
Let’s look at a quick scenario.
You are attempting to develop rapport and put the candidate at ease. This is a technique most hiring managers use when interviewing a new applicant.
You haven’t started the interview yet…
You: “Where do you live? I live in that area too. We moved there because the schools are great.”
Candidate: “Yes, that’s how we selected it too. My kids love it.”
You: “Oh how old are your kids”
Candidate: “Three and seven.”
The Problem: Asking the age of the children is illegal because you may make assumptions about the parent of a three- and seven-year-old being less reliable than someone with no children or older children.
Later in the interview, you see that there is a gap in the candidate’s employment and it looks like they are returning to work.
You: “Tell me about your work experience during the last five years.”
Candidate: “I was doing volunteer work during most of that time. I am returning to work because I just got divorced.”
You: Showing empathy you ask, “Oh how are you adjusting?”
Candidate: “It’s been hard, but we are managing.”
The Problem: They volunteered that they were just divorced. By asking how they are doing, you are eliciting information about their mental health. When they responded, “It’s been hard…” You may assume that they are not stable enough to return to work.
This kind of cordial exchange feels good for both of you. You have things in common and you are getting along. In the end, a much more qualified candidate is hired.
The Problem: Because you and the candidate became so familiar, they assumed they were getting the job. They are more disappointed than they would have been had the conversation seemed less personal. They may even become angry that they were not offered the job. Looking for reasons, they remember that you asked questions about their children and their mental health. They file a discrimination in employment claim.
There are many landmines for a hiring manager during job interviews. Your intention when asking a question is irrelevant. The perception of the candidate is what matters when they decide to file a discrimination complaint. The questions you should not ask, are because they could lead to discriminating against a person based on legally protected categories: race, color, religion or creed,
national origin or ancestry, sex (including gender, pregnancy, sexual orientation, and gender identity), age (over 40), physical or mental disability, veteran status, genetic information, and citizenship.
It is always best to stick to questions that have a direct relationship to the candidate’s ability to do the job.
Here are some of the topics to avoid:
Living Arrangements or Marital / Family Status
Asking questions about who they live with, where they live and whether they rent or own their home can all be considered ways of determining things about their race, ethnicity, or creed. Questions about children, marital status, etc. are also to be avoided.
Don’t ask, don’t discuss, don’t acknowledge. Let’s assume a person tells you she just turned 50 years old. Do not respond or even act like you heard the statement. Move on to another question as quickly as possible. Resist the impulse to say, “Really, you don’t look like you are 50.” Age discrimination starts at 40 years. Anyone over 40 is protected from age discrimination.
Arrest Record / Convictions
Do not ask about arrest record. Arrests happen for many reasons and people are arrested who are not guilty of a crime. Regarding convictions, this varies from state to state, but steer away from this question. Depending on the state, it could also be illegal to have the question on your application. There is a big push for “Ban the Box,” which is a law that prohibits an application from asking the question, “Have you ever been convicted of a crime?” If you are doing a background check it should be for a reason directly related to the job. We recommend background checks for jobs where the person would be working with children, the elderly, money, access to private residences or offices, or other reasons that it would be important to know that has not committed crimes related to the job. The key here is that not hiring a person as a result of a conviction should only be if the conviction was related to the job they are being hired to do. If you do a background check and determine the person has a record they did not disclose, tread lightly when asking questions about the conviction or seek advice before asking questions.
Unless the job is directly related to the person driving or using their car for a purpose related to the job, then you have no reason to know how they will get to work, if they drive, or if they have a driver’s license.
Ask all candidates the same questions when it comes to availability. Asking only women about evening work or asking someone you assume to be Jewish about Saturday work is discriminatory. You can ask, “Do you have any restrictions regarding your availability to work evenings and weekends?” or you can say, “This job requires some weekend and evening work. Will that be a problem?” When asking these types of questions, make sure you are asking them of all candidates.
Citizenship / National Origin
Don’t ask or engage in any conversation about citizenship or national origin. If the candidate begins the conversation don’t engage. For example, if they ask, “Are you Armenian?” You can respond, but don’t engage in a conversation or ask them in return. Do not ask a candidate if they are a US citizen. Don’t ask about family of origin with questions like, “That’s an unusual name, what nationality is it?” “What is your background?” or “Where were you born?” Even if the name is a familiar one to you, don’t make a comment relating back to national origin. Even a question such as, “How did you learn Portuguese” could be interpreted as seeking to learn national origin.
You cannot ask about disabilities. “Do you have a disability?” “Have you ever filed a worker’s compensation claim?” “Have you ever suffered a workplace injury?” These are all pretty much forbidden question. However, you can ask everyone prior to their arriving for an in-person interview if they need any accommodations. Then address the accommodation, without asking for a diagnosis. This is not something to selectively ask. Ask everyone. Do not ask if a person is disabled or has a disability before they are hired. Once they are hired, you can ask, but they are not obligated to answer the question. In most states, pregnancy falls within the category of disability. Don’t make the assumption someone has a disability, when in fact they may not. I once asked a friend’s spouse, “When are you due?” She wasn’t pregnant.
Graduation / Education – Year of graduation
Have you looked at a resume that shows someone graduated from university in the 1970s or 1980s and thought, “…they’re old.” Have you judged resumes that do not have the year someone graduated from college or high school? Applicants are not required to share their graduation dates and the year they graduated is not to be asked. It can be an indicator of someone’s age.
I’m not sure why you would need to know genetic information, but let’s say you are working with a population that has a high incidence of diabetes. You can’t ask if the candidate or a family member has diabetes. You can ask a question of how they might talk with a patient who is not watching their diet and maintaining high blood glucose levels. That would likely tell you more than knowing if they themself or a family member has or had diabetes.
Don’t ask about any membership in any groups other than professional organizations. Do not discuss non-professional organizations. Non-professional organizations are often associated with gender, race, nationality, religion, or age.
You cannot ask if or why a person changed their name. If they give you a prior name, you cannot ask why they changed it.
Race / Color / Ethnicity /National Origin
Don’t ask or say anything about these categories even if you identify with the category and think that might establish rapport. Also, even if the person is of the same race, ethnicity, or national origin as you or you feel some level of familiarity with them because of their national origin, this should be off limits. It is a slippery slope into saying something that is misinterpreted and leads to ill feelings or claims of discrimination. If your company or organization works with a specific population, you can ask, “What is your experience working with _______ (fill in the blank with the characteristic of your clientele)?”
Religion / Creed
Do not ask questions about religion or creed. Even if the person mentions their religion, do not ask questions that you think might pertain to their ability to do the job. For example: If someone mentions that they are Muslim, don’t ask about them working on Friday evenings. You should have questions you ask everyone about availability. Also, don’t engage in discussion about the religion. If it is Ramadan when they are interviewing, you could say, “Happy Ramadan,” but don’t go further than that.
Sex, Orientation, or Gender Identity
Don’t ask or engage in discussion about their sex, sexual orientation, or gender identity. If you are a female led organization, you can ask, “Have you ever worked in a female led organization before?” This question should be asked of everyone, not only men. The protection for sex, sexual orientation, and gender identity is for all people not only those considered less privileged or the minority. That means, if your organization works with LGBTQI individuals, a cisgender (gender assigned at birth) male heterosexual could claim discrimination if your questions seemed targeted at their protected status.
Although this list may seem long, it is not all inclusive. The best practice when interviewing is to have a set of questions specially related to the job the candidate will do. Do not ad lib when it comes to the questions. If you are asking all candidates the same thing, you are safely getting the answers you need without gathering superfluous information. You can ask clarifying questions, but make sure they do not relate to the candidate’s protected status. Following these guidelines, you will not only protect yourself from claims of discrimination, you will also mitigate for unconscious biases and likely hire the most qualified candidate.
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