HR Professionals and recruiters are well versed in how to avoid illegal questions in the hiring process.
But in our industries, it’s rare to have an HR professional on our payroll.
To make matters trickier, illegal questions during the hiring process are not necessarily obvious to the inexperienced manager. They can easily come up in the small talk before or after the structured interview. And in this grey area where questions are not necessarily on their face illegal, but could be construed as such, lies potential liability for your business.
We’ll share some general best practices for questions to help you train you team who perform interviews to protect your business, and not slip into the most common pitfalls.
Age
Age discrimination is a challenge, especially for work seekers over 40. It’s not uncommon for employers to look to younger generations, especially in service industries. Younger employees are perceived as more energetic, more open to change, and most importantly – less expensive than older, more experienced work seekers.
While it’s simple to avoid the easy question of “how old are you?”, it’s important to be aware of more subtle line of conversation that could also be construed as a veiled attempt to determine age.
Ensure your managers avoid questions that also orient the individual to certain points in time. For example, questions like “do you remember, ‘I’ve fallen and I can’t get up!'”, or “What year did you graduate high school?” are examples of questions that must not be used.
Race, Religion or Country of Origin
Questions like “where is your family from?” often come up in friendly social conversation. But in a professional work setting, this type of question is not appropriate.
A rule of thumb is that if the conversation establishes any of the elements of this protected ground, it is not only inappropriate, you are opening up your business to a claim of discrimination.
For example, questions that tend to establish this protected ground, such as “when did you learn to speak English?” may seem innocent enough, however they are strictly forbidden during interviews.
Similarly, it is not uncommon for travel plans or experiences to be discussed as a part of icebreaker conversation. However, a subtle mention of travel can bring up the work seeker’s desire to “go home”. During that conversation, the country of origin, race – and sometimes even religion – is established.
If the work positions requires specific language skills, or knowledge of certain cultures, simply ask: “Which languages do you speak and write fluently?”. All other questions about race, creed, and birthplace have no place in the hiring process.
Marital Status and Family Situation
It is illegal to inquire about marital status, the presence of children in the home, how many generations live in the home, etc.
This is often the most dangerous pitfall for the inexperienced interviewer. More than any other topic, this one can be unintentionally triggered during the small talk portion of the interview.
There is often a desire from both parties to quickly build rapport. And a quick anecdote from the interviewer about a challenge dropping off children that morning, or an outstanding to-do list for their spouse could lead to a reciprocal story from the work seeker. Even if the story is about the pet fish of the work seeker, the interviewer has now learned a great deal about the family situation about the individual.
Gender or Sexual Orientation
Similar to the family situation of the work seeker, this question has no place in the interview and hiring process.
It is generally perceived as irrelevant to the work seeker’s ability to perform the functions of the position. And therefore is a question that could open up your business to liability if an inexperienced interviewer treads into these waters.
Beware the similar pitfalls that apply to family situation surrounding the danger of it coming up in small talk.
Mental or Physical Health and Disabilities
Many positions have physical requirements for the position. And these position requirements are often grouped under the heading “must be able to lift 50 lbs comfortably”.
In practice, this is a generally accepted catch-all phrase for positions that require some level of physicality. However, it is best practice to take the time to actually specify in position requirements and interview the actual job requirements.
For example, a requirement for a prep cook may be that they must be comfortable lifting a 50 lb bag of potatoes from it’s storage spot 6 inches off the ground, carry it 45 feet up a flight of 10 stairs, and place it on a 34 inch high countertop.
By ensuring you only discuss physical ability when it is related to clearly specified job requirements, you or your hiring manager will steer clear of any potentially dangerous grey area.
Arrest Record
An employer can ask applicants if they have a criminal record. However, the employer cannot ask questions such as “have you ever spend the night in jail?” or “have you ever been arrested for a crime?”
In each and every case, an employer is best served by asking the question “have you ever been convicted of a crime?”, and then letting an extensive background check do all the heavy lifting.
Closing Thoughts
Work seekers today are quite savvy about the questions that can and can’t be asked in an interview. When one of these off limit questions are asked it not only creates an uncomfortable situation (with potential liability to your business), it also damages your brand in the eye of the interviewee.
By not coaching interviewers on these critical items, you risk damaging your brand by carelessly slipping into one of these traps.
The great irony of course, is that in our social age, one doesn’t need to be overly clever to learn personal information about a work seeker that would be otherwise illegal to ask in an interview. A quick search of almost anyone on Facebook, Twitter, Pinterest, YouTube or Instagram reveals pictures of our kids, pets, general age, family life, lifestyle, religion, and sexual orientation.
Essentially – many of the forbidden interview topics that cannot be asked during an interview are often on display for all to see.
What are some question structures that you like to avoid? Who do you train to perform interviews? What tools do you feel like you’re missing and want more information on? Comment below!
