Interview Questions to Avoid:
How to Say It and Still Be Legal!
By Cheryl Lewis, CVPM, VNoC & VIoC Practice Administrator
The goal of an interview is to obtain important information, but care must be used with certain questions to avoid any legal concerns for potential discrimination claims. This should be communicated to team members if you are planning on any working interviews as well. The last thing you want is a support team member thinking that they are asking a perfectly pertinent question and then you are being sued over what the interviewee deems as discrimination by your company.
Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. At the federal level, Title VII doesn’t prohibit discrimination based on sexual preference; however many state laws and regulations do prohibit this type of discrimination. Check your state laws.
Maryland: Under Maryland’s "new" sexual orientation legislation, codified at Md. Code 1957, Art. 49B, employers may not, in making employment decisions, discriminate on the basis of their applicants’ or employees’ sexual orientation. The legislation broadens Maryland’s civil rights law banning discrimination in employment, housing and public accommodations on the basis of race, religion, sex, age, color, national origin, marital status, and disability to include a ban on discrimination also on the basis of sexual orientation.
- What you can’t ask: What religion do you practice? Which religious holidays do you observe? Do you belong to a club or social organization?
- What you CAN ask: What days are you available to work? Are you able to work with our required schedule? Are you a member of a professional or trade group that is relevant to our industry?
- What you can’t ask: How old are you? How much longer do you plan to work before you retire?
- What you CAN ask: Are you over 18?
- What you can’t ask: Are you a U.S. citizen? What is your native tongue? How long have you lived here?
- What you CAN ask: Are you authorized to work in the U.S.? What languages do you read, speak or write fluently? What is your current address and phone number? Do you have any alternative locations where you can be reached?
Marital and Family Status
- What you can’t ask: Is this your maiden name? Do you have or plan to have children? Can you get a babysitter on short notice for overtime or travel? Do you have kids? Who is your closest relative to notify in case of an emergency? What do your parents do for a living? If you get pregnant, will you continue to work, and will you come back after maternity leave?
- What you CAN ask: Have you worked or earned a degree under another name? Are you available to work overtime on occasion? Can you travel? You'll be required to travel or work overtime on short notice. Is this a problem for you? What is your experience with "x" age group? In case of emergency, who should we notify?
- What you can’t ask: We've always had a man/woman do this job. How do you think you will stack up? How do you feel about supervising men/women? What do you think of interoffice dating?
- What you CAN ask: What do you have to offer our company? Tell me about you previous experience managing teams. Have you ever been disciplined for your behavior at work?
Health and Physical Abilities
- What you can’t ask: Do you smoke or drink? Do you take drugs? How tall are you? How much do you weigh? Do you have any disabilities? Have you had any recent or past illnesses or operations?
- What you CAN ask: In the past, have you been disciplined for violating company policies forbidding the use of alcohol or tobacco products? Do you use illegal drugs? Are you able to reach items on a shelf that's five feet tall? Are you able to lift boxes weighing up to 50 pounds? How many days of work did you miss last year? Are you able to perform the specific duties of this position?
Other questions to be aware of:
- What you can't ask: How far is your commute?
- What to ask instead: Are you able to start work at 8 a.m.?
Although hiring employees who live close by may be convenient, you can't choose candidates based on their location. Find out about their availability instead.
- What you can't ask: Do you live nearby?
- What to ask instead: Are you willing to relocate?
If your candidate lives outside of the city your company is hiring in, it may be necessary to have them move to your area. But again, you can't discriminate based on location. Rather, find out if the applicant is willing to move closer to the office.
What you can't ask: Do you have a car?
What to ask instead: Do you have reliable transportation?
Asking whether or not they have a car is forbidden as it is deemed to have an impact on minorities.
The best approach for coming up with good, safe interview questions is to start with a detailed job description, which specifies:
- The essential functions of the job
- Required knowledge, skills & abilities
- The quality and quantity standards needed to meet the job requirements
- The education and work experience required
- Physical factors, such as working conditions
- The time that will be spent performing tasks
Specific questions can then be generated to assure that each candidate meets the requirements, without placing you at risk of a lawsuit.