Since it’s difficult to conduct effective interviews, many organizations with the resources to support an HR department leave initial interviews up to the professionals.
Much of the information you avoided asking for on your job application becomes apparent when you meet someone face-to-face (such as race, age, physical disability and national origin). So, you must take extra care not to ask questions or make comments that an applicant might construe as discriminatory. Wise employers that observe the spirit as well as the letter of the law won’t let such irrelevant prejudices keep them from hiring the best people.
Before the interview, prepare a list of questions and carefully review them. Make sure your questions request only job-related information that will help you in the selection process. Federal and state equal-employment opportunity laws prohibit discrimination on the basis of race, color, national origin or citizenship, religion, sex, age and disability. Some state laws also prohibit discrimination based on other factors, including marital status, familial status, sexual orientation and AIDS. You’re violating those laws if, during the course of an interview, you raise a question specifically relating to one of these characteristics.
But what if a job applicant reveals personal information? That’s not an excuse to probe further. If a job applicant voluntarily reveals a disability, the interviewer may ask only whether the applicant needs a reasonable accommodation for the disability and, if so, what it might be. Remember, you may not discriminate against applicants simply because they require accommodation.
You’re really just asking for trouble if you probe for information that clearly has nothing to do with the applicant’s ability to perform the job. When examined in the harsh light of litigation, such lines of questioning will seem as though the employer was fishing for a reason not to hire the applicant.
If you’re not sure about a particular question, pause and ask yourself: “Would I make the same inquiry with any other job applicant?” For example, before asking a female applicant, “Which is more important to you, a family or a career?” consider whether you would likely ask a male the same question. Remember, however, that just because you would ask a question of all applicants does not make it lawful.
Observation: During interviews, most illegal questions usually stem from ignorance, not from maliciousness. But the courts will determine that inquiries singling out a group may be discriminatory, even if the interviewer intended no discrimination. Educate all staff members involved in the hiring process; train them to know what’s legal and illegal to ask.
Caution: Federal recordkeeping requirements mandate that you keep any interview notes as well as application forms and other records concerning hiring for at least one year. But the U.S. Supreme Court ruled in Jones v. R. R. Donnelly & Sons Company (124 S. Ct. 1836, Decided May 3, 2004) that the statute of limitations for 42 USCS §1981 is four years. That means employees can file suits involving hostile work environment,and failure to transfer as long as four years after the last discriminatory act.
Bottom line: Employers would be well advised to keep pertinent records at least four years.
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