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Best Practices in Interviewing

How to Interview Legally and Effectively: Avoid Illegal Interview Questions

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Avoid Asking Illegal Interview Questions and Other Frequent Interview Problems

Avoid Asking Illegal Interview Questions and Other Frequent Interview Problems

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We all know how litigious our society has become in the area of employment-related issues. Every recruiter, hiring manager, executive, and department manager must realize that asking illegal interview questions or making improper inquiries can lead to discrimination or wrongful-discharge lawsuits, and these suits can be won or lost based on statements made during the interview process.

Thus, it is important to incorporate risk management into your interviewing process to help minimize your firm's exposure to employment practices liability.

You, or your company, could be accused of asking illegal interview questions or making discriminatory statements or comments that reflect bias. It is also possible to make assurances or promises during an interview that can be interpreted as binding contracts. Recognizing these potential danger areas is the best way to avoid saying the wrong thing during an interview.

Most companies have at least two people responsible for interviewing and hiring applicants. It's critical to have procedures to ensure consistency. Develop interviewing forms containing objective criteria to serve as checklists. Develop lists of interview questions and illegal interview questions.

These ensure consistency between interviewers, as well as create documentation to support the hiring decision if a discrimination charge is later filed by an unsuccessful applicant.

Interview Problems to Avoid

To minimize the risk of discrimination lawsuits, it’s important for interviewers to be familiar with topics that aren’t permissible as interview questions. Avoid illegal interview questions. For example, you shouldn’t ask a female applicant detailed questions about her husband, children and family plans.

Such questions can be used as proof of sex discrimination if a male applicant is selected for the position, or if the female is hired and later terminated. Older applicants shouldn’t be asked about their ability to take instructions from younger supervisors.

It is also important to avoid making statements during the interview process that could be alleged to create a contract of employment. When describing the job avoid using terms like "permanent," "career job opportunity," or "long term."

Interviewers should also avoid making excessive assurances about job security. Avoid statements that employment will continue as long as the employee does a good job. For example, suppose that an applicant is told that, "if you do a good job, there's no reason why you can’t work here for the rest of your career." The applicant accepts the job and six months later is laid off due to personnel cutbacks.

This could lead to a breach of contract claim where the employee asserts that he or she can't be terminated unless it's proven that he or she didn’t do a "good job." Courts have, on occasion, held that such promises made during interviews created contracts of employment.

Illegal Interview Questions

These practices will help you hire the most qualified candidate using legal, documented interview methods, including avoiding illegal interview questions.

Learn to assess job candidates on their merits. When developing evaluation criteria, break down broad, subjective impressions into more objective factors.

Obviously, you must prepare for the interview by reviewing the application, resume, cover letter, test results, and other materials submitted by the candidate. Try and put the candidate at ease and ask interview questions that can’t be answered with a "yes" or "no" response.

These open-ended questions allow applicants to tell all about their skills, knowledge and abilities. Some examples are: "Why are you leaving your current employer?" "Do you prefer routine, consistent [work or fast-paced tasks that change daily?” "And why?"

Interview Problems to Avoid Including Illegal Interview Questions

Interview questions and issues you want to avoid include the following:

  • asking improper, even illegal interview questions,

  • making discriminatory statements, and

  • making binding contract statements.

The following are examples of interview questions that should be avoided in interviews because they may be alleged to show illegal bias. This is why they are illegal interview questions.

  • Are you a U.S. citizen? (adversely impacts national origin)

  • Do you have a visual, speech, or hearing disability?

  • Are you planning to have a family? When?

  • Have you ever filed a workers’ compensation claim?

  • How many days of work did you miss last year due to illness?

  • What off-the-job activities do you participate in?

  • Would you have a problem working with a female partner?

  • Where did you grow up?

  • Do you have children? How old are they?

  • What year did you graduate from high school? (reveals age)

As you can see, these rather simple and seemingly non-threatening questions can easily violate one of the aforementioned dangers when conducting interviews.

More Best Interview Tips

Now that you know about illegal interview questions, read about how to develop a legal interview and legal interview questions.

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*Mike Posey is Vice President of ZERORISK HR, Inc., a Dallas-based Human Resources risk management firm and exclusive provider of ZERORISK Hiring System. For more information, visit the web site or send email to Mike at Mike.Poskey@ZERORISKHR.com.

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