What should we focus on when interviewing, and what topics should we avoid?
Quick Answer
Employers generally should not ask job applicants any questions about personal characteristics that the law protects, including race, color, religion, sex, national origin, age, ethnicity, pregnancy and disability. Nor should they ask about an applicant’s citizenship status, arrest history, family/marital status, military discharge status or genetic information. Unless they are job-related, questions about height and weight should be avoided.
Legal Perspective
Shawe Rosenthal
Baltimore, Maryland
The interviewer should focus on questions about the applicant’s job-related skills and qualifications, says employment law attorney Fiona Ong of the firm Shawe Rosenthal LLP. Interviewers should also be consistent in the scope of the general questions that are being asked of each applicant.
Unless it is a bona fide occupational qualification (like having a female employee to assist female clients with activities involving bodily privacy), it is important to avoid any questions that might implicate legally protected personal characteristics, like race, sex (including the intention to become pregnant or childcare responsibilities), national origin, age, etc.
In addition, the Americans with Disabilities Act prohibits interviewers from asking applicants if they have any mental or physical disabilities, although they can ask if the applicant can perform the essential functions of the job in question, with or without reasonable accommodation.
There are also state-specific restrictions. For example, many states and local jurisdictions also prohibit interviewers from asking questions about an applicant’s criminal background until after the interview or after a conditional job offer has been made, unless they are legally required to ask earlier. A number of states also prohibit interviewers from requiring applicants to provide access to personal social media accounts.
Relevant Case Law
Read v. Willwoods Community
EEOC v. Con-Way Freight
HR Insight
LifeHealth
Washington, District of Colombia
Our focus differs based on the role, says Tracy Williams, VP of Human Capital. For example, if the interview is with a physician, then it will focus on education, qualifications and skills.
However, if it’s for a recruiter, it will be more of a skills-based interview. Any questions related to the individual’s personal life should be avoided, such as “How many children do you have?”
US Real Estate Services Inc.
Foothill Ranch, California
I focus on skills, experience and knowledge first, HR Manager Sallie Hansen says, to establish whether the candidate has the experience and training to perform the functions necessary to succeed in the role.
Once I see that candidates meet that portion, I shift my focus to teamwork and style to ensure they would be a good fit within the existing department. I’d avoid all the protected areas, such as age, sex, sexual orientation, religion, culture, medical history, if they have a family or kids, or anything too personal that might be misunderstood as a reason if you do not end up selecting this candidate. Fit for the job duties and fit within the organization are the primary goals of our interviews.
Everde Growers
Houston, Texas
Body language is critical, according to Carmela Bozulich, a Recruiter in California. Specifically, eye contact, facial features and expressions, and level of nervousness factor into how I assess candidates apart from the questions asked.
Anything not job-related is a definite no as to topics. If a candidate brings up families or hobbies, I’m careful as to whether I want to pursue a line of questioning for more information. Hobbies or outside interests can often indicate a work ethic or personality trait that is either a plus or a minus depending on the role.
The Cost of Noncompliance
Party City pays $155K to applicant with autism
Who was involved: Party City Corporation, a national discount and costume retailer based in New Jersey, and a candidate with disabilities who applied at a location in New Hampshire.
What happened: The applicant was on the autism spectrum and suffered severe anxiety. As such, she had been receiving support from the Easter Seals. To help build the woman’s self-confidence, the Easter Seals provided a job coach to accompany the woman on job interviews, including one at Party City. According to the EEOC’s suit, the Party City hiring manager’s “attitude changed dramatically” after discovering the person accompanying the applicant was a job coach. Specifically, the hiring manager allegedly told the job coach that the company had hired individuals assisted by job coaches in the past, and that “it had not gone well.” Moreover, the hiring manager “tried to cut the interview short” by saying to the job coach, “Thank you for bringing her here,” in a “patronizing tone.”
Result: The company paid $155,000 to settle the complaint. It also entered into a three-year consent decree that:
- Enjoined the company from discriminating against qualified applicants with job coaches.
- Required the company to revise its reasonable accommodation policy.
- Required the company to provide training to HR on the new policy.
- Required the company to distribute the new policy to all employees.
- Required the company to post a notice about the consent decree in all store locations in New England.
Info: Party City to Pay $155,000 to Settle EEOC Disability Discrimination Lawsuit, 4/22/19.
Racial bias: Black applicant told to remove braids to ‘look more professional’ receives $100K
Who was involved: Alliant Techsystems, Inc. (ATK), a Minnesota-based aerospace and defense manufacturer, and a Black female applicant who applied for an IT position.
What happened: According to the EEOC’s suit, a recruiter for the company advised the applicant to take out her braids to appear more professional. She complied and went through a round of several interviews. Afterward, the recruiter told the woman that the company wanted to hire her. The suit alleged that by the time the applicant met with the company’s IT director, she had rebraided her hair. The following day, she was notified that she would not be hired. The following month, the company hired a white male for the position. The EEOC’s suit alleged the proffered reason for the hiring decision was a pretext for race-based bias.
Result: The company paid $100,000 to end the dispute. In addition to the financial payout, it also agreed to extensive equitable relief, including:
- Reviewing its workplace policies to ensure they comply with Title VII and record-keeping laws.
- Reviewing and revising a policy that pertains to the maintenance of interview notes.
- Training its entire staff against discrimination.
Info: ATK to Pay $100,000 to Settle EEOC Race Discrimination Case, 11/27/12.
Key Takeaways
- Ask only questions that directly relate to the applicant’s ability to do the job. Ask whether the applicant is legally authorized to work, but do not ask for their country of birth or national origin.
- Once a job offer has been extended, an employer may make medical inquiries without violating the Americans with Disabilities Act as long as it does so for all entering employees in the same category of job.
- Sometimes, the end is proper but the means are not. For example, do not ask whether the applicant is a citizen in order to determine whether they are authorized to work. Instead, simply ask whether they are authorized to work.
- Do not ask about an applicant’s childcare arrangements.
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