You know better than to ask a job candidate how old he or she is. But employee-side lawyers are crafty, and can build an age discrimination lawsuit around queries that seem a lot more innocent.
What not to ask
Some examples from a recent post on The EmpLAWerologist blog:
- How long would you stay with us?
- How long do you plan to work?
- How’d you feel about working for someone younger than you?
- When did you graduate?
- How many years of experience do you have?
Obviously, these questions are dangerous because they could draw out someone’s approximate age.
And they’re also kind of dumb. What response can you expect if you ask a candidate, “How long would you stay with us?” “Well, just until I get enough dough together to run away to Mexico”?
Nonetheless, these kinds of questions do get asked of candidates on a depressingly regular basis. And if a rejected candidate sues for age bias, it’ll be hard to prove you didn’t base your decision on his or her answers.
A couple additional reminders
Obviously, you need a lot of information before deciding to hire someone. And that means asking a lot of questions.
Much of the problems come in the phrasing. Everything you ask should be related to the person’s ability to do the job, but some questions might inadvertently come out in a way that reveals off-limits details on things like race, religion, disabilities, etc. You need to phrase those questions in a way that only addresses the work-related details.
Along with the kinds of questions listed above, here are another two areas where you need to tread carefully:
“Family responsibility” discrimination
You can’t ask if a candidate has kids. That’ll leave the company open to sex discrimination charges if it looks like you treat men with children differently than you treat similarly-situated women. You’re better off not knowing about familial status. If you’re filling a position that requires odd hours or a lot of overtime, just make sure the candidate understands that and ask if availability will be a problem for any reason.
Disability discrimination
Finally, you should avoid questions regarding health and physical abilities, such as those about height, weight, injuries, disabilities, etc. Instead, ask specific questions about what’s required for the job, for example, “You’d have to carry boxes weighing up to 50 pounds – can you do that?”
