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Avoiding Discrimination and Illegal Questions in Job Interviews

When small business owners sit down with a prospective employee, they want to know more about their potential new hire. Small businesses 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 and you're genuinely interested in their backgrounds.

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

This article discusses what job interview questions you can ask and which should wait until you've made a job offer and begun onboarding.

Please visit FindLaw's Hiring Process section for more information about the hiring process.

Things You Can't Ask And What to Ask Instead

State and federal laws protect job applicants 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. You owe it to yourself and your other workers to hire the most qualified candidates for your workplace.

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

These are some of the more common areas where interviewers get into trouble.

Religion: You may not ask about a potential employee'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," but you may not ask if they can work "Saturdays."

Race, ethnicity, or national originCasually 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.

CitizenshipAlthough you can ask for proof of ability to work in the U.S. legally, you should not ask, "Are you here legally?" The EEOC states that you may not use the I-9 Proof of Eligibility form until after making an offer of employment. Again, keep your focus on hiring the right candidates.

AgeThe 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, and we have a lot of younger workers. Is that a problem?" You may see it as a description of your company culture; 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?"

Disability: Under the Americans with Disabilities Act (ADA), you may not ask any potential employee if they have a disability unless it is obvious (such as a wheelchair). But, your job description must contain all "essential job functions" in job postings.

Don't Ask

Some things you may not ask about under any circumstances:

  • The employee's sexual orientation or gender identity. If the employee volunteers their gender and preferred pronouns, you should use those without comment.
  • Their weight, health, or other physical conditions.
  • If they were ever arrested or convicted of any crime. Most state laws allow background checks after a conditional offer of employment.
  • If they have a history of alcohol or substance abuse. Again, most states allow employers to perform drug and alcohol testing after an offer of employment. The EEOC considers alcoholism and some forms of substance abuse to be disabilities.
  • Some states and cities have salary history bans, meaning you may not ask, and former employers will not tell you what a worker was making. You may ask on the job application, but you should never question it in an interview.

Sometimes, you can ask questions that seem to expose you to liability but actually don't. If your company has an anti-nepotism policy (meaning they do not hire employees if relatives already work for the company), you may ask if the candidate has any "relatives" who work there.

If the applicant volunteers the information above, they have not broken the law. The interviewer should stick to the job issues and continue the interview. There is time to learn about the new employees after they start work.

Other Things to Avoid and Things You Can Say Instead

Many job seekers know about the lists of prepared questions HR professionals use to screen employees. That does not make these lists a bad thing. They can help keep your interview on track and focused on the candidate's work experience and knowledge of the job requirements. In general, think of an interview as a formal party. If you wouldn't ask a question at a dinner party, don't ask it during a job interview.

Perilous Promises

In today's online workplace, with employees having myriad job options, some HR managers can try too hard to make a job opening seem attractive. Promises during the recruitment process can be an easy way to attract top talent, but they can also be a quick way to litigation if the promises don't pan out.

Things to avoid when courting or interviewing an applicant include:

  • Promises about job security. You never know how an applicant will work out or how the job will go. Never say anything the applicant could construe as a guarantee of long-term employment, even if that's what everyone wants.
  • Misstatements about the job position, salary, or duties. Applicants do their research nowadays, and information about your company and the job is available on job boards. If they apply for a position at a specific salary and you offer something different, they're likely to walk out — and leave an unflattering review on your social media.
  • Predictions about the company's stability or financial future. All small businesses hope to become large ones. Employee retention is essential for that dream to come true. Your employees will know almost immediately if your statements are true once they start working, and they won't be happy if it isn't true.

Keep to the subject and tell the truth. You don't need to tell your prospect that the company is floundering and they need their expertise to keep from going under, but you must be honest about the facts. Let them know you want them to stay, but never promise the job is theirs for as long as they want it. Stick to the job, and you should be fine.

Get Legal Help for Hiring Questions

Knowing what you can and cannot ask during an interview can be difficult. You don't want to end up with a bad hire you can't get rid of but you also want to follow the requirements of the law in the interview process. If you need help with your human resources questions, talk to an employment lawyer.

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