As the economy improves and employers learn that they are not able to do more with fewer employees and/or high performers are leaving to go to what they perceive as a better job, the hiring process begins. As such, hiring managers need to be aware of what they may or may not ask of an applicant during the hiring process, or of a candidate during the interview. While this may seem easy, it is an area where employers continue to increase their liability every day.
One wrong question could lead to a discrimination lawsuit on behalf of an applicant or candidate. Employers need to remember that federal and state laws prohibit discrimination on the basis of an applicant’s or candidate’s race, color, religion, sex (pregnancy, gender identity, and sexual orientation), national origin, age (40 and over), disability, genetic information as referenced in the Genetic Information Nondiscrimination Act (GINA), military service veteran status, or any other characteristic protected by federal, state and local laws. Employers who are not aware of the federal and/or state laws that impact their organization, should consult with a human resource professional or employment law attorney to make sure that their organization is in compliance.
It is important that employers make sure that their hiring managers are trained to ask the “right” questions to be compliant with employment-related laws. Compliance includes making sure that the questions asked during the interview process are directly related to the job. Every question that a hiring manager asks of an applicant or candidate should relate to how the candidate’s education, experience, skills and abilities, competencies, etc. relate to the job that they are applying for within the organization. Hiring managers usually get themselves and their organization into trouble when they ask for information that is not relevant to the job.
To avoid the appearance of discrimination, hiring managers should avoid asking applicants and candidates the following:
- How old are you?
- Are you single, married, widowed or divorced?
- Are you pregnant, or do you plan to become pregnant?
- Do you have children? If so, how many and how old are they? What are your plans for day care?
- Have you ever been hospitalized? If so, for what?
- Have you ever been treated by a psychiatrist or psychologist?
- Have you been sick recently?
- How many days of work have you missed during the last year because of illness?
- Are you likely to take time off under the Family and Medical Leave Act?
- Do you own or rent a home or condo?
- Do you have any debt? If so, how much?
- Do you have insurance? If so, what kind and how much?
- Do you below to any political or social clubs or organizations?
- Do you attend Church on a regular basis? If so, what religion do you practice?
- What would you do if your spouse were transferred?
- Do you believe that you are able to perform the job as well as a man/woman?
- Do you suffer from an illness or disability?
- Do you have any disabilities or impairments that might affect your performance in this job?
- Have you ever been treated for drug addiction or alcoholism?
- Have you been convicted of a crime?
While this list is not all inclusive, it is a start to get hiring managers thinking about whether they are in compliance or not. If a job candidate reveals information that an interviewer is not allowed to ask (see above), they should not pursue the topic. Interviewers should make sure that if the candidate does refer to a topic during the interview that is not compliant, that they should change the subject immediately. The thought that the candidate brought up the topic and the interviewer innocently pursued it, won’t fly in court, so make sure to train hiring managers to change the subject immediately and make sure that they do not take notes regarding the forbidden topic, or that they write in their notes that the information provided by the candidate was volunteered and not asked.
For additional information on what managers may or may not legally ask during the hiring process or during an interview, please contact us at www.newfocushr.com . We have the ability to train and coach managers on how to be legally compliant during the hiring and interviewing process which ultimately results in fewer liabilities for your organization.
Written by: Kristen Deutsch, M.B.A., CCP
President
2/17/19
