Best Practices for Employers in a Hiring Interview
Created by FindLaw's team of legal writers and editors | Last reviewed December 06, 2016
A hiring interview helps employers and prospective employees learn more about each other and the position, while determining whether the relationship will be productive. While there are many things employers would like to know about prospective employees before hiring anyone, employers must be cautious about what subjects they broach in an interview. Not only are employers prohibited from asking questions which may be interpreted as discriminatory (even if that's not your intent), employers should avoid making statements which could be construed as forming a false basis for the acceptance of a job offer.
For example, asking a candidate about his national origin may seem harmless to you, but it could signal a desire to illegally discriminate based upon the candidate's citizenship. Also, stating that a candidate will work for at least two years if hired could be the basis of a lawsuit if that candidate is laid off before that time.
This article will discuss what job interview questions are allowed and which are impermissible, and list some best practices for employers during interviews. Note that these prohibitions generally only apply to employers with four or more employees.
For more information and resources to help you with the interviewing and hiring process, please visit FindLaw's Hiring Process section.
Questions Prohibited by Law
State and federal laws protect job applicants from discrimination in hiring and also safeguard their privacy. Employers are generally prohibited from asking questions about a candidate's:
- Race or ethnicity
- National origin or citizenship
- Marital or family status (i.e. if the candidate has children)
- Sexual orientation or gender
The exception to this rule is where the attribute is central to the job. For example, you may ask a candidate about his or her religion if you're a religious organization.
While the above topics are prohibited from being broached by the employer, no law prohibits the candidate from volunteering such information. Even if a candidate does so, however, it's wise for the employer to acknowledge the answer and simply move on to the next question. There's no point in dwelling on the answer and risking any claim of discrimination or a violation of privacy.
The best way to avoid these issues is to simply stick to issues related to the job. Asking someone how old his or her children are may seem like chit chat to you, but a) it's completely unrelated to the job, and b) it could be construed as discriminatory and is prohibited by law. Keep the discussion limited to the job description and the company and you'll be fine.
Making Valid Inquiries About Prohibited Subjects
While the topics listed above are prohibited under various anti-discrimination laws, there are still ways in which you can properly and lawfully ask related questions (listed below). Remember that if the subject is central to the performance of the job, employers can ask direct questions about the above subjects.
Religion: It's illegal to ask about a candidate's religious affiliation, but permissible to ask if the candidate is able to work the required hours (some candidates may not be able to work weekends because of their religious observations).
Citizenship: You may not ask where a candidate comes from, but may ask if he or she is legally permitted to work in the U.S.
Age: Other than a minor, you can't ask for a candidate's age or date of birth. But, you may ask if the candidate is 18 years old, or the minimum age necessary to perform the job.
Marital Status: It's not permissible to ask whether a candidate is single, engaged, married, or divorced. You may ask, however, if the candidate's spouse works for the company (if the company has a nepotism policy).
Sexual Orientation or Gender: It's illegal to make any inquiries about sexual orientation.
Disability: It's impermissible to ask if a candidate has any disabilities, but you may outline the duties of the job and ask the candidate if he or she is able to fully perform the duties.
Employer Best Practices
In order to avoid potential pitfalls that can expose you to liability, it's always best to be fully prepared for interviews. This means knowing what you can and can't inquire about, and remaining on point throughout the interview.
It may help, and certainly won't hurt, if you walk into the interview with a written list of issues and questions that you shouldn't ask. The list above is a good start, and can be expanded by using common sense and simple etiquette. You wouldn't ask someone how much he or she weighs or about his or her sex life at a dinner party, so you certainly shouldn't during a job interview. As stated, keep the question to job-related issues and most potential "problem questions" evaporate.
In addition to avoiding prohibited topics and problem questions, it's important to avoid making anything sounds like a promise. Promises in the job hiring process can be construed as either oral contracts or false pretenses, which can result in liability to the business if the relationship goes sour (or even if the relationship is fine but the promises are not met).
The bottom line: just tell the truth. If the company hasn't expanded in years, don't tell a candidate that there has been fantastic growth. If the candidate accepts the job and realizes that the company is actually stagnant, he or she may have grounds to sue. Here are a few subjects to avoid:
- Excessive assurances about job security. If you do so and the person is laid off, he or she may sue for breach of contract.
- Promises or predictions about the company's financial forecast. Observations of past performance and hopes for the future are completely acceptable, but don't overdo it.
- Statements about the company's stability.
- Misstatements about the job position. If the person accepts a certain job but later finds that he or she is performing different duties, or a different job, the person may have grounds to sue.
At the end of the day, if you 1) avoid prohibited subjects (unless it's central to the job duties or asked in a permissible manner), and 2) keep the interview focused on the skills and behavior needed to perform the job duties, you'll be within the parameters of the law and likely avoid liability.
Getting Legal Help
It can be difficult navigating through the laws related to the types of questions that an employer is allowed and not allowed to ask during an interview. If you would like advice or help with the interviewing or hiring process, you may want to consult with an employment lawyer in your area.
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