When you’re interviewing job candidates, you should consider some questions to be totally off-limits because they put you and your company at risk of running afoul of labor laws. The problem isn’t really in the questions themselves, but in what they may reveal about the candidate. Asking questions about a federally protected status or certain aspects of their past or personal lives can reveal information that, if you reject candidates, may leave the impression you discriminated against them. And that impression — whether right or wrong — can leave you vulnerable to a lawsuit.
Even if you win a discrimination lawsuit, just having to fight it in court is expensive and can put your company’s finances at risk, so it’s safer to avoid these 10 questions and topics during the job interview process.
Anything about marital status
Even a “seemingly innocuous” question such as “What does your spouse do for a living?” can cause trouble, says Shira Forman, an employment lawyer with Sheppard Mullin Richter & Hampton. “It indirectly seeks information regarding marital status and sexual orientation, both of which are impermissible bases for hiring decisions.”
Anything about kids
Asking about children or pregnancy status should be avoided, says Wendy Stryker, counsel to Frankfurt Kurnit. This includes questions like “Can you get a babysitter on short notice if you needed to travel?”
Questions like this may seem like legitimate inquiries about a candidate’s time commitments, says Erik Gunderson, an attorney at Charlton Weeks LLP, but “this question constitutes a form of discrimination because it is disproportionately asked of women as opposed to men, and interviewees who have children will likely answer the question differently than those who do not,”
A better question to ask, says Gunderson: “Do you have any sorts of personal commitments that might interfere with your ability to do work here at our facility during our regular business hours?”
“Is English your first language?”
This can seem like a legitimate question, Forman says — after all, it relates to communication, which is important for most jobs. However, it can elicit information about nationality and possibly ethnicity, two protected statuses under the law.
“How old are you?”
“This violates the federal Age Discrimination in Employment Act (ADEA), which prohibits taking adverse employment action against applicants or employees over 40 years old,” says Janette Levey Frisch, an attorney with The Emplawyerologist. Some states have their own laws protecting wider ranges as well.
“What do you do in your spare time?” or “What organizations do you belong to?”
Even these questions can elicit answers that reveal a candidate’s protected status, such as religion, sexual orientation, marital status or whether they have children, Frisch says.
“How many sick days did you take in the last year?”
This type of question could elicit a response that reveals the existence of a disability and provide the basis for an Americans with Disabilities Act (ADA) claim, Frisch says.
“Will you need reasonable accommodations to perform this job?” can also lead to liability under the ADA, says employment attorney Michael Rehm.
“Have you ever been convicted of a crime?”
State laws vary when it comes to asking about past convictions. “In New Jersey, for example, you can only ask about criminal convictions after the first interview, says Nicholas Fortuna of Allyn & Fortuna LLP. “Many states also have instituted what is called ‘ban-the-box’ legislation. So even the line, ‘Check the box if you have you ever been convicted of a crime,’ cannot appear on the application.”
“What’s your Facebook password?”
Don’t ask for access to private social media accounts, says Paula Lopez of Allyn & Fortuna; it’s an invasion of privacy. “Some states have passed legislation prohibiting the asking of this question. And, of course, once a person is hired, there are other rules prohibiting employers from forcing employees to give access to private social media accounts.”
“Did you organize your last workplace?”
The National Labor Relations Act protects a worker’s right to organize, Rehm says. “Any interview questions that ask about former union membership or union preferences are illegal.”
If you have questions about interviewing or other aspects of hiring for your organization, contact us. We’re here to help.
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