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Interviews: The legal way to ask 5 risky questions

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in Discrimination and Harassment,Employment Law,Firing,Hiring,Human Resources

Employee lawsuits tend to increase during recessions and this one is no exception.

Job discrimination claims filed by U.S. employees and applicants are running at record-high levels in the past two years. Managers and supervisors are at the front lines of making decisions that often trigger those lawsuits—promotions, pay raises, terminations and job assignments.

But the most legally dangerous of all those situations is interviewing job candidates.

One misguided question could cause an applicant to think he or she was rejected due to one of the federally protected categories (race, gender, disability, age (40 or older), national origin, religion or pregnancy status). Even your most well-intentioned questions (“So how did you get that broken arm?”) could be interpreted in a discriminatory way.

Managers usually land in trouble when they ask for information that’s irrelevant to a candidate’s ability to perform the job. That’s why managers should make sure every question relates to this central theme: “How are you qualified to perform the job you are applying for?”

5 legally safe inquiries

Here are five questions that can reveal more about the interviewee, without risking a hiring discrimination charge.

1. “Tell me about your work history.” Open-ended questions can elicit more information than specific ones. When answering that kind of question, the elements that a candidate chooses to emphasize can be illuminating. Listen for statements that clue you in to the intangibles most important to success in the position.

Avoid asking the more generic “Tell me about yourself” question, which could elicit personal information about children, church affiliation and other off-limits topics.

2. “Can you work overtime? Weekends? Night shifts?” Some interviewers draw conclusions about the willingness of a candidate (especially women with children) to work long hours or extra hours. Don’t do it. Directly question all candidates about their willingness and ability to work nonstandard hours.

3. “Do you feel comfortable lifting 50 pounds several times a day?” Don’t assume that certain candidates aren’t able (or willing) to do manual duties or work at certain jobs. Ask specific questions based on the person’s ability to perform essential functions of the job. You can even test the applicant’s ability to perform the task. Just don’t make assumptions.

4. “Do you have any physical limitations that would keep you from performing the job’s essential functions?” You’re entitled to know, but caveats exist. First, you must clearly define a job’s essential functions. Second, you must ask this question of all applicants.

You can also ask what type of accommodation applicants would require. But you can ask this only if the person has an obvious disability or the applicant volunteers that he or she has a disability. These rules are all covered under the Americans with Disabilities Act (the ADA).

5. “In what way has your education prepared you for this job?” For many positions, a high school (or college) diploma doesn’t qualify as a bona fide occupational qualification. Instead of asking about a piece of paper, ask about specific skills that the applicant needs for success.

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