Never Ask vs Can Ask - Interviewer Questions
Summer is half gone and so is vacation time! We at HR4Hire are back and ready to help you gear up for your post-summer needs, which may involve hiring some new team members.
Continuing our emphasis on the importance of the interview to ensure you’re hiring “right,” this blog explores some danger areas where posing a question can lead to a possible lawsuits. Below are some of the questions that should NOT be asked, as well as alternative methods to gather the same information while lessening the possibility of litigation.
Danger Area – NATIONALITY
Certainly, you want to be sure that a candidate can legally work for you, but you need to be careful how you ask about their work status.
Never Ask: Are you a U.S. citizen? Though simple and direct, courts have ruled it discriminatory. An interviewer cannot ask where a candidate was born, either.
Instead Ask: Are you authorized to work in the U.S.?
Never Ask: What is your native tongue? Where is your accent from? Again, it may offend people as there are assumptions about their language and culture. Additionally, it is not your concern as an employer how the applicant attained fluency in a language – just that they are fluent.
Instead Ask: What languages do you read, speak or write fluently?
Never Ask: How long have you lived here? It’s important not to ask about a candidate’s residency directly. Rather, ask about their current situation, and they may volunteer information about their past along the way.
Instead Ask: What is your current address and phone number? Do you have any alternative locations where you can be reached?
Danger Area – RELIGION
Religion is a subject that should be treaded upon lightly at the office, and even more so in interviews.
Never Ask: What religion do you practice? It is imperative you refrain from asking directly about a candidate’s beliefs. If you decide to not hire them, they can claim this was the reason.
Instead Ask: What days are you available to work?
Never Ask: What religious holidays do you observe? Keep the questions about affirming the days a candidate can work to avoid discrimination claims.
Instead Ask: Are you able to work our required schedule?
Never Ask: Do you belong to a club or social organization? Candidates are not required to share such information with potential employers and it has little to no relation to their ability to do a job.
Instead Ask: Are you a member of a professional or trade group that is relevant to our industry?
Danger Area – AGE
Courts are full of lawsuits where candidates claim they were told they were too young or old for the position.
Never Ask: How old are you? While it seems like a simple question, it is in fact quite loaded. Knowledge of an applicant’s age can set you up for discrimination troubles down the road. Similarly, avoid questions that can easily determine an applicant’s age, such as “When did you graduate from high school?”
Instead Ask: Are you over the age of 18?
Never Ask: How much longer do you plan to work before you retire? You can’t dismiss a candidate for this reason. Asking about their future plans may answer this for you.
Instead Ask: What are your long-term career goals?
Danger Zone – RELATIONSHIPS AND FAMILY
While these generally get asked to women with children, embarrassing and assuming questions can unintentionally come out when asking about work availability.
Never Ask: Is this your maiden name? A candidate’s marital status isn’t something that’s required to be shared with employers.
Instead Ask: Have you worked or earned a degree under another name?
Never Ask: Are you straight or gay? Even if the job is for the gay community, the candidate’s actual preference is private information.
Instead Ask: What is your experience working within the gay community?
Never Ask: Is your spouse Caucasian/Hispanic/African American/Asian, etc? An interviewer has no right to know if an applicant is married and what race the spouse is. If the position is dealing with one of these communities, you can ask about their working experience but not private life.
Instead Ask: What is your experience working with the “x” community?
Never Ask: Do you have kids? This is especially true if the position involves working with children. While it may be a bonus for them to have the experience of children at home, it is not an employer’s place to ask about this. Instead ask them about their experience and this information may come out.
Instead Ask: What is your experience with “x” age group?
Never Ask: Do you have or plan to have children? This is not something an employee has to tell you. Keep the questions related to work availability issues.
Instead Ask: Are you available to work overtime on occasion? Can you travel?
Never Ask: If you get pregnant, will you continue to work, and will you come back after maternity leave? You can’t ask a woman to share her pregnancy plans. Instead, ask about future goals and plans.
Instead Ask: What are your long-term career goals?
Never Ask: Can you get a babysitter on short notice for overtime or travel? How they conduct their private life, such as child care logistics, is not for you to dictate.
Instead Ask: You’ll be required to travel or work overtime on short notice. Is this a problem for you?
Never Ask: Who is your closest relative to notify in case of emergency? The candidate may not be close to relatives and prefer to list a friend.
Instead Ask: In case of emergency, who should we notify?
Never Ask: What do your parents do for a living? This is not directly related to their future performance in a position.
Instead Ask: Tell me how you became interested in the “x” industry.
Danger Zone – GENDER
Be sure you don’t make assumptions on a person’s abilities based on their gender.
Never Ask: We’ve always had a man/woman do this job. How do you think you will stack up? Don’t ask directly how being a man or a woman could affect the job.
Instead Ask: What do you have to offer our company?
Never Ask: How do you feel about supervising men/women? The candidate may not have any issues with the opposite sex and you’ll seem crass for even bringing it up.
Instead Ask: Tell me about your previous experience managing teams.
Never Ask: What do you think of intra-office dating? This may even be interpreted as a come-on.
Instead Ask: Have you ever been disciplined for your behavior at work?
Danger Zone – HEALTH AND PHYSICAL ABILITIES
Avoid discriminatory assumptions when asking about a candidate’s health and abilities.
Never Ask: Do you smoke or drink? Don’t ask this directly.
Instead Ask: In the past, have you been disciplined for violating company policies forbidding the use of alcohol or tobacco products?
Never Ask: Do you take drugs? Prescription drug needs are off-limits to ask about, but you may ask about illegal drug use. However, forced self disclosure of criminal activity could fall into a discussion around defamation that the company may not be prepared to defend.
Instead Ask: Have you used illegal drugs in the past “x” (2 or 6) months?
Never Ask: How tall are you? How much do you weigh? These are not necessary relevant to the candidate’s ability to do the job, even one requiring physical labor.
Instead Ask: Are you able to reach items on a shelf that’s “x” feet tall? Are you able to lift supplies weighing “x” pounds?
Never Ask: How many sick days did you take last year? Take a look at missed days as a whole to measure a candidate’s commitment. Even healthy people get sick from time to time.
Instead Ask: How many days of work did you miss last year?
Never Ask: Do you have any disabilities? You only need to find out if the applicant can handle the job’s requirement.
Instead Ask: Are you able to perform the specific duties of this position?
Never Ask: Have you had any recent or past illnesses or operations? Illness isn’t something most people can help. What you need to know is if they can perform the job functions.
Instead Ask: Are you able to perform the essential functions of this job with or without reasonable accommodations?
Danger Zone – MISCELLANEOUS
Residence, legal troubles and military service
Never Ask: How far is your commute? Do you live nearby? You can’t choose candidates based on their location, only their ability to the job.
Instead Ask: Are you able to start work at 8 a.m.? Are you willing to relocate?
Never Ask: Have you ever filed bankruptcy? Questions about your financial status, whether you own a home, or have previously had wages garnished are off-limits.
Instead Ask: If good credit is a part of job, the company has the right to conduct a credit check.
Never Ask: Have you ever been arrested? A candidate only needs to disclose convictions and you should only ask about crimes that relate to your concerns.
Instead Ask: Have you ever been convicted of “x” (fraud, theft, and so on)?
Never Ask: Were you honorably discharged from the military? You can’t ask about their military record, however, in talking about their experience it may be volunteered.
Instead Ask: Tell me how your experience in the military can benefit the company.
Never Ask: Are you a member of the National Guard or Reserves? If the candidate thinks this is why you did offer them the position, you will have a lawsuit on your hands.
Instead Ask: Do you have any upcoming events that would require extensive time away from work?
The information in this blog is especially important, as one group who has seen an increase in business is employment lawyers representing plaintiffs bringing discrimination suits against past and prospective employees (see article “Jobless boom gives a boost to employment lawyers,” by Kathleen Pender, San Francisco Chronicle Section D, July 11, 2010)
HR4Hire can act as your recruiting function or assist you with structuring any interview, whether it be a disciplinary or counseling one, to ensure that you achieve the results you want and that the potential for litigation is greatly minimized. We also offer Executive Coaching and can train your staff to fine-tune their interviewing skills, regardless of the interview’s purpose.
Our “Hiring Right the First Time” presentation, which can be found here on our website, may be of benefit to your company or organizations of which you are affiliated with.
Please call us to set up an in-person meeting at 415-437-6755 or 707-935-3333 or email us at info@hr4hire.com.
Cordially,
Gae Shulman, President
HR4Hire
HR Intelligence Check:
A retail employer requires employees to work on Labor Day Monday, September 6th, a busy sales day for the store. One of the employees will not work unless she is paid premium pay. Must the employer pay higher wages to employees who work on the holiday?
A) Yes
B) No
C) Maybe
Answer to be given in next month’s blog!
Answer to previous blog’s HR Intelligence Check:A) A selection rate for any race, sex, or ethnic group which is less than four-fifths of the rate for the group with the highest rate will generally be regarded as evidence of adverse impact.
If you’d like to see the question this answered, please click here to read Interviewing is Just Talking to People, Isn’t It.
