Good employees are hard to find, but sometimes the things we do to hire the right people can lead to bad consequences. Certain questions, no matter how well-intentioned, break the law. Save yourself a potential lawsuit, and make sure these kinds of questions aren’t in your interview routine.
Before we get started, though, it’s important to remember that the laws are different in every state. We’re going to cover the basics, but only a lawyer can give you concrete legal advice. Make sure you talk to your lawyer before you make any changes to your hiring process.
Interviews and Discrimination
Most of the questions we’re going to cover here are illegal because they can contribute to discriminatory practices. These are questions about race, color, religion, sex, national origin, disability, genetic information, or age; all things protected from discrimination by the equal employment opportunity laws.
The trap that business owners fall into here is that sometimes genuine questions can be phrased in ways that appear discriminatory. You might be trying to get to know them better, or to get a feel for their background and experience, and end up asking them questions that are illegal. Here are a few questions that can get you in hot water:
What Church Do You Go To?
Questions about religion are always a bad idea. Religious affiliations are legally protected, and asking direct questions about them won’t tell you anything about someone’s character or background. It doesn’t matter if you live in a small town or a large city; this is a question that’s guaranteed to put you in hot water.
Are You Married?
This might seem like an odd question to avoid (it’s asked commonly enough in social settings) but questions about marital status are often used to determine someone’s sexual orientation, or otherwise invade their personal privacy. Some interviewers use this question to gauge whether or not the job candidate would be fit for a position that involves frequent travel or evening work; you’re better off being direct.
Who Did You Vote For?
Keep politics out of the workplace. Affiliations – personal, political, and professional – are legally protected, and that even includes things like clubs and bowling leagues. You can get away with open-ended questions (“Do you belong to any professional or trade groups that you would consider relevant to this position?”) that keep the focus on the job, but be careful; the line here is blurry.
Have You Ever Been Arrested?
There’s a big difference between being arrested and being convicted. When it comes to the hiring process, you should only ask about the latter. Additionally, there are laws which govern how criminal history can be used in making employment decisions, so make sure you’re playing by the book.
How Old Are You?
This may be a surprising question to see here, but age is a protected trait. There’s a significant difference between asking whether someone can provide legal proof that they are over the age of eighteen if they are hired and asking for a specific number. Age is a common point of discrimination for older workers, and it’s rarely a relevant topic for service businesses.
Are You On Facebook?
Checking up on someone’s social media presence may be common practice, but asking for that information overtly is a bad idea. Social media accounts contain lots of information that’s protected by equal employment laws, and explicitly asking for information about social media accounts during your interview process is an easy way to end up in a courtroom. Rely on professional background checks instead.
Job Relevancy
The questions we’ve detailed above are just a fraction of what you can’t ask about, but they provide a pretty good picture of what is and isn’t appropriate. Good interview questions are open-ended, and they prompt the candidate to apply critical thinking skills and demonstrate their aptitude. Most of the questions that are illegal are just the opposite; they’re direct questions that target specific personal qualities that aren’t directly related to the job.
If you really want to protect yourself during interviews, stick to behavioral and situational questions. These are questions that prompt the job candidate to describe how they’d fix, handle, or otherwise respond to real-life or hypothetical situations. These kinds of questions offer insights into how people behave under pressure, what resources they’re most familiar with, and how they conduct themselves in professional environments. You can get really specific with these questions (in relation to the job) and learn a lot without asking for anything that’s illegal.
No interview process is perfect, but most businesses could do a lot to improve what they’re already doing. Ironing out the legal side of your interview process to make room for more productive questions is a great first step.
