{"id":4670,"date":"2016-04-04T10:47:37","date_gmt":"2016-04-04T15:47:37","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/smallbusiness\/employment-law-and-human-resources\/best-practices-for-employers-in-a-hiring-interview.html"},"modified":"2024-05-01T04:38:00","modified_gmt":"2024-05-01T09:38:00","slug":"best-practices-for-employers-in-a-hiring-interview","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/smallbusiness\/employment-law-and-human-resources\/best-practices-for-employers-in-a-hiring-interview.html","title":{"rendered":"Best Practices for Employers in a Hiring Interview"},"content":{"rendered":"\n
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Avoiding Discrimination and Illegal Questions in Job Interviews<\/h1>\n\n
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\n By Susan Buckner, J.D.<\/a> | Legally reviewed by Susan Mills Richmond, Esq.<\/a>\n | Last updated\n
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Editorial Note: We earn a commission from affiliate partner links on FindLaw. Commissions do not affect the editorial integrity of our legal content.<\/p>\n\n <\/div>\n \n

\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n

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Key Takeaways<\/h2>\n

Hiring discrimination occurs when an employer treats a job applicant unfavorably due to protected characteristics like race, religion, age, or disability. Prohibited interview questions involve the applicant\u2019s national origins, citizenship, gender identity, or criminal history before a conditional job offer.<\/p>\n\n <\/div>\n <\/div>\n<\/div>\n\n\n

When small business<\/span> owners<\/span> sit down with a prospective employee<\/span>, they want to know more about their potential new hire<\/span>. Small businesses<\/span> are more close-knit than big, impersonal corporations, and it’s natural to want more information about a new worker. You would like to know if this person will fit in with your current employees<\/span> and you’re genuinely interested in their background.<\/p>\n

But, employers must be careful about asking the wrong questions during a hiring interview. The interview process<\/span> is only for screening job candidates<\/span> and filling open positions<\/span>. You must avoid asking discriminatory or biased questions, even with no such intentions.<\/p>\n

This article discusses what job <\/span>interview<\/span> questions<\/span> you can ask and which should wait until you’ve made a job offer and begun onboarding<\/span>.<\/p>\n

Please visit FindLaw’s <\/strong>Hiring Process<\/span><\/strong><\/a> section for more information about the hiring process<\/span>.<\/strong><\/p>\n

Things You Can’t Ask And What to Ask Instead<\/strong><\/h2>\n

State and federal laws protect job applicants<\/span> from hiring discrimination. Laws also protect applicants’ privacy about their health, past work history, and lifestyle. But, employers need some of this information to make hiring decisions<\/span>. You owe it to yourself and your other workers to hire the most qualified candidates<\/span> for your workplace.<\/p>\n

The Equal Employment Opportunity Commission<\/strong><\/a> (EEOC) enforces all workplace discrimination laws. It offers guidance for hiring managers<\/span> who need to interview new workers but want to avoid asking the wrong questions or even the right questions<\/span> in the wrong way. In general, as long as you stick to the job itself and refrain from asking the prospective employee<\/span> for information you can get elsewhere, you should be fine.<\/p>\n

These are some of the more common areas where interviewers get into trouble.<\/p>\n

Religion<\/strong><\/a>:<\/strong> You may not ask about a potential employee<\/span>‘s religious affiliation. You may ask if they are available for the hours offered or for all work hours. Beware of saying things like, “We expect all our employees to be 100% available,” since that may sound like you won’t give time off for religious observances. If you want workers to be available for weekend shifts, you can ask if they can work “weekends,” as long as the question is asked of all applicants and the employer is prepared to provide \u201creasonable accommodation\u201d for religious practices unless it causes undue hardship.<\/p>\n

Race, ethnicity, or national origin<\/strong><\/a>: <\/strong>Casually asking “Where are you from?” is polite small talk anywhere else. In the hiring interview, it is impermissible. You may not ask questions that might suggest a bias for or against anyone from a particular area, race, or ethnicity. If you are curious about their origin, wait until after you’ve hired them.<\/p>\n

Citizenship<\/strong><\/a>:<\/strong> Although you can ask if the applicant is legally authorized to work in the U.S., you should not ask, “Are you here legally?” You may not use the I-9 Proof of Eligibility<\/span> form until after hiring. Again, keep your focus on hiring the right candidates<\/span>.<\/p>\n

Age<\/strong><\/a>:<\/strong> The Age Discrimination in Employment Act (ADEA) bans discrimination against workers over 40. Business owners may not realize they’re discriminating when they say, “We’re a startup<\/span>, and we have a lot of younger workers. Is that a problem?” You may see it as a description of your company culture<\/span>; your applicant may see you as biased against older workers. Other things to avoid: “Are you comfortable with using computers?” or “Can you take orders from younger managers?”<\/p>\n

Disability<\/strong><\/a>: <\/strong>Under the Americans with Disabilities Act (ADA), you may not ask any potential employee<\/span> if they have a disability even if the disability is obvious (such as a wheelchair). But, your job description<\/span> must contain all “essential job functions” in job postings<\/span>.<\/p>\n

Salary History<\/a>:<\/strong> Many states have salary history bans in which employers are prohibited from asking about salary history in an effort to close gender and racial wage gaps.<\/p>\n

Criminal History<\/a>: <\/strong>Fair Chance and \u2018Ban the Box\u2019 laws prohibit employers from asking about criminal history on job applications<\/span>. Often these laws allow questions about prior convictions only after an interview or conditional job offer.<\/p>\n

Don’t Ask<\/strong><\/h2>\n

Some things you may not ask about under any circumstances:<\/p>\n