Conducting job interviews appears to be simple. Asking some general questions about the candidate to get to know them better should be harmless, right? Well, it depends.
With discriminatory practices (intentional, or not) still being prevalent and more studies bringing light to such issues, fair recruiting and interview processes have become more of a priority. As a hiring manager, there are some lines you definitely shouldn't cross, especially when it comes to interview questions. Not only can doing so be disrespectful, but one wrong move could also result in a costly lawsuit.
The Equal Employment Opportunity Commission (EEOC) uses a guiding principle to decide whether or not an interviewer should be asking a question: "Can the employer demonstrate a job-related necessity for asking the question?" The EEOC will use the intent of the question and the utility of the obtained information to decide if any discrimination has occurred.
The only times when discriminatory employment practices are permitted is when a person's "religion, sex, or national origin is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business or enterprise." For example, hiring a female janitor to clean the women’s bathroom.
However, hiring managers and recruiters must realize that something as seemingly innocent as a question on demographic information could end up with an impending costly lawsuit.
Here are 13 topics that you should avoid asking a candidate about during an interview, unless absolutely necessary:
According to the Americans with Disabilities Act (ADA), employers are limited in making disability-related inquiries during the pre-offer, post-offer, and employment stages. These are questions that elicit information about a disability. These include questions like, “Have you ever had a disability?” or questions on the prescription medicine they are taking.
2. Genetic Information
Under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), hiring companies and other employment-related organizations such as employment agencies, labor organizations, and joint labor-management training and apprenticeship programs are heavily restricted from requesting for, requiring, or purchasing genetic information.
3. Gender Identity and Sexual Orientation
Gender identity and sexual orientation have been explicitly mentioned as bases for discriminatory practices. If knowing the candidate’s gender identity and sexual orientation has absolutely nothing to do with the job, then it’s best not to ask about them.
In general, questions about an applicant’s religious affiliation or beliefs are viewed as non-job-related under federal law. However, if religion is a bona fide occupational qualification, employment based on religion is permitted. For example, the employment of religious teachers in religious educational institutions.
5. Race and Ethnicity
As with gender identity and sexual orientation, Title VII of the Civil Rights Act of 1964 also prohibits discrimination based on race. Questions regarding race and ethnicity should not be asked about unless it is a BFOQ.
6. Military Discharge
While not exactly illegal, employers are strongly advised against asking related questions as EEOC has said that basing hiring decisions solely on military discharge status violates Title VII as it has been found to work against the African-American community in particular.
7. Educational Requirements
It’s normal for jobs to require a minimum level of education. After all, the educational certificate does imply that the applicant has the basic level of knowledge necessary to perform some basic job functions. But if the requirements are higher than what is needed to successfully perform the job, it may violate Title VII as it can potentially and disproportionately exclude certain racial groups.
8. Marital and Family Status
Such questions have the potential to violate Title VII as they may be seen as evidence of intent to discriminate against people such as women with children, pregnant women, or single parents.
Asking the interviewee about when they graduated high school, or their date of birth could be seen as a form of age discrimination. If necessary, candidates could be asked to furnish their proof of age or mention that hiring is subject to age verification.
Some jobs may require candidates with the ability to speak or write certain languages. It’s crucial for such questions to be worded distinctively. Ask the candidate what languages they speak and write fluently, if required by the job, instead of asking for their native language, as it could be considered as national origin discrimination.
11. Salary History
Although it isn't uncommon for companies to ask for the last drawn salary of an individual, it could be seen as gender discrimination and may even violate state laws. Rather than basing their pay off their previous salary, ask for their salary expectations for the position. After all, candidates should obtain remuneration based on the value of their experience to your company, rather than calculated based on their previous paycheck.
12. Financial History
Questions relating to debt and financial health could be justified for positions involving significant amounts of cash or financial accounts. However, it’s also a form of discrimination towards those with lower incomes and is a gray area that should be avoided if possible.
13. Health and Physical Abilities
Enquiring about a candidate’s smoking and drinking habits to more personal information like height and weight or past illnesses could also be seen as a form of discrimination. Instead, ask about their ability to perform specific tasks required by the job description.
Even though employers do not have any ill intent when seemingly asking certain types of questions, it can be perceived as discrimination. Here are some tips and guiding principles which should be considered while crafting interview questions, to prevent these sticky situations.
Know What Should be Avoided
Steer clear from asking sensitive information (like all those mentioned above). Conduct thorough checks on all interview questions prior to the interview, and stick strictly to the questions. Recruiters and hiring managers should not be given the freedom to ask any additional questions that are not included on the list.
Keep to the Essentials
Ask only questions that are important and necessary for the job. All questions should be directly related to the job descriptions, with the sole purpose of determining if the candidate has sufficient skills required for the job at hand.
Ask the Same Questions
For a fair and just interview process, all candidates should be asked the same questions. That being said, the questions should also be relevant to all candidates. If otherwise, do take time to review and determine if it should be replaced with another. (If adjustments need to be made, be sure to avoid asking unnecessary questions unless they are BFOQs.)
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