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Best Practices for Employers in a Hiring Interview

A hiring interview is a valuable means through which employers and prospective employees can learn more about each other and the position, as well as predict whether the relationship will be productive and enjoyable. While there are a great many things employers would like to know about prospective employees before hiring anyone, in this litigious era employers must be cautious about what subjects they broach in an interview. Not only are employers prohibited from asking questions which may be interpreted as discriminatory (even if that's not your intent), employers would also be wise to avoid making statements which could be construed as forming a false basis for the acceptance of a job offer.

For example, asking a candidate about his national origin may be innocuous to you, but it could signal a desire to discriminate based upon the candidate's citizenship, which is prohibited by law. Also, stating that a candidate will work for at least two years if hired could be the basis of a lawsuit if that candidate is laid off before that time.

This article will discuss what job interview questions are allowed and which are impermissible, and list some best practices for employers during interviews. Note that these prohibitions generally only apply to employers with 4 or more employees.

Questions Prohibited by Law
State and federal laws protect job applicants from discriminating in hiring, and also safeguard their privacy. Employers are prohibited from asking questions about a candidate's:

  • Religion
  • Race or ethnicity
  • national origin or citizenship
  • age
  • marital or family status (e.g., whether they have children)
  • disability
  • sexual orientation or gender
  • weight

The exception to this rule is where the attribute is central to the job. For example, you may ask a candidate about their religion if you are a religious organization.

While the above topics are prohibited from being broached by the employer, there is no law prohibiting the candidate from volunteering the information. Even if a candidate does so, however, it is wise for the employer to acknowledge the answer and simply move on to the next question. No point in dwelling on the answer and risking any claim of discrimination or privacy concerns.

The best way to avoid these issues is to simply stick to issues related to the job. Asking someone how old their children are may seem like chit chat to you, but a) it's completely unrelated to the job, and b) it could be construed as discriminatory and is prohibited by law. Keep the discussion limited to the job description and the company and you'll be fine.

Making Valid Inquiries About Prohibited Subjects
While the topics listed above are prohibited under various anti-discrimination laws, there are still ways in which you can properly and lawfully ask that are related to the prohibited questions. For example, you are not allowed to ask someone their age, but you can lawfully verify that they are over the age of 18 (and therefore able to work full time) or whatever minimum age the job requires.

Following are some examples of prohibited subjects and sample questions which approach but do not cross the line into illegal discrimination. Remember that if the subject is central to the performance of the job, employers can ask direct questions about the above subjects.

It is illegal to ask about a candidate's religious affiliation, but permissible to ask if the candidate is able to work the required hours (some candidates may not be able to work weekends because of their religious observations).

You may not ask where a candidate comes from, but may ask if they are legally permitted to work in the United States.

Other than a minor, you cannot ask for a candidate's age or date of birth, but you may ask if they are 18 years old, or the minimum age necessary for job performance.

Marital Status:
It is not permissible to inquire whether a candidate is single, engaged, married or divorced, but you may ask if their spouse works for the company (for companies with nepotism policies).

Sexual orientation or gender:
It is illegal to make any inquiries about sexual orientation.

It is impermissible to ask if they have any disabilities, but you may outline the duties of the job and ask the candidate if they are able to fully perform them.

Employer Best Practices
In order to avoid potential pitfalls that can expose you to liability, it is always best to be fully prepared for interviews. This means knowing what you can and cannot inquire about, and remaining on point throughout the interview.

It may help, and certainly won't hurt, if you walk into the interview with a written list of issues and questions that you should not ask. The list above is a good start, and can be expanded by using common sense and simple etiquette. You wouldn't ask someone how much they weigh or about their sex life if you were at dinner, so you certainly shouldn't during a job interview. As stated, keep the questions to job-related issues and most potential "problem questions" evaporate.

In addition to avoiding prohibited topics and problem questions, it is important to avoid making anything that sounds like a promise. Promises in the job hiring process can be construed as either oral contracts or false pretenses, which can result in liability to the business if the relationship goes sour (or even if the relationship is fine but the promises are not met).

The bottom line: just tell the truth. If the company has not expanded in years, don't tell a candidate that there has been fantastic growth. This is not the time for corporate pufferyif the candidate accepts the job and realizes that the company is actually stagnant, he may have grounds to sue.

A few subjects to avoid:

  • excessive assurances about job securityif you do so and they are laid off, they may sue for breach of contract.
  • promises or predictions about the company's financial forecastobservations of past performance and hopes for the future are completely acceptable, but don't overdo it.
  • statements about the company's stability.
  • misstatements about the job positionif they accept a certain job but later find that they are doing different duties, or a different job, employees may have grounds to sue.

At the end of the day, if you 1) avoid prohibited subjects (unless it's central to the job duties or asked in a permissible manner, above); and 2) keep the interview focused on the skills and behavior needed to perform the job duties, you will be within the parameters of the law and likely avoid liability.

For further information on hiring discrimination, click here.

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