Job interview can go bad … for employer

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The process of selecting and interviewing job applicants is one of the most critical and contentious stages of the employment relationship. A faulty selection process or a bad interview can lead to significant business and legal problems.

In addition to high turnover, losses in productivity and bad publicity, mishandled employment interviews can result in compensatory and punitive damages from civil discrimination lawsuits. Some even credit the employment selection/interview process for more claims of discrimination than any other type of employment practice. This is due, in part, to untrained interviewers who simply ask the wrong questions.

So how, then, can employers minimize the chance of being sued over something that happens during an employment interview? From both a legal and practical standpoint, the best employment practice is one that is fair, neutral and applied equally across the board.
The ultimate goal in any interview should be to assess an applicant’s potential to perform a particular job. Interview questions should address issues that allow the interviewer to measure the applicant’s knowledge, skills and abilities for a particular position.

As a general rule of thumb, employers should avoid asking questions during interviews which could be later construed as evidence of discriminatory intent. These are questions which relate, either directly or indirectly, to an applicant’s race, gender, religion, marital status, age, health, ethnic background, national origin, citizenship, sexual preference, age, military service and arrest and conviction record.

Unfortunately, it is not always clear as to whether an interview question crosses the proverbial line. With respect to citizenship, for example, employers can inquire into whether an applicant can legally work in the United States, but cannot inquire into whether an applicant is a citizen. With regard to age, employers can inquire into an applicant’s age in order to ensure compliance with child labor laws, but in practically all other situations cannot probe into how old an applicant is.

Employers should be especially cognizant of interview questions which indirectly relate to a protected class. For example, inquiries into whether a woman has or plans on having children may give rise to a gender discrimination claim. Questions about the type of name a person has (Jewish, Muslim, etc.) tend to shed light on an applicant’s place of origin and can lead to lawsuits based on national origin and/or citizenship. Inquiries into what neighborhoods an applicant has lived in can lend itself to race-based (ethnic background) charges of discrimination and questions regarding an applicant’s organization affiliations (i.e. NAACP, Knights of Columbus) can result in allegations of discrimination based on race or creed.

While the possibilities are nearly limitless as to what questions may or may not be appropriate during an employment interview, consider the following:

Age: Questions relating to maximum (rare) and minimum age limits as established by law are fine. Avoid any other questions hinting at an applicant’s age such as “do you remember the 1960 election” or “do you plan on retiring soon.”

Arrests and Convictions: As a general practice, avoid questions regarding an applicant’s arrest history during the interview process and only inquire into convictions that are substantially related to the position at hand.

Citizenship and National Origin: Other than an inquiry into whether a person is legally authorized to work, there is no legal question that can be asked regarding this subject.
Disability/Health: Questions regarding whether an applicant can perform the essential duties of a particular position with or without reasonable accommodations are fine. Any other inquiry which implicates an applicant’s health is ill-advised.

Gender: Questions in this regard are never appropriate unless there is a Bona Fide Occupational Qualification” (“BFOQ”), which is extremely rare.

Marital/Family Status: Questions relating to an applicant’s marital status are not appropriate. Employers may ask if applicants are able to meet specific work schedules or events. In doing so, however, employers must be careful not to get into childcare arrangements or spousal commitments.

Military Service: Inquiries regarding education, experience and skills gathered while serving in the military which relate to the particular position at issue are fine. Employers should avoid questions during an interview that probe into the terms of an applicant’s military discharge.

Race: All inquiries which reference race or color are inappropriate. This includes questions based, even loosely, on stereotypes.

Religion: Questions in this area should be avoided at all costs. Employers may ask if applicants are able to meet specific work schedules or events (i.e. over the weekend).

Sexual Orientation: In states that prohibit workplace discrimination on the basis on sexual orientation, questions on this subject should not be asked.

When getting into areas of inquiry which may come close to one or more of these protected classes, consistency in what questions are asked is an employer’s best friend.

Questions asked of minority and women applicants should also be asked of non-minority and male applicants and vice versa. This should help to reduce any inference of preference should a discrimination claim arise.

The moral in all of this is that an employer should strive to be as objective and neutral as possible during the interview process. I am by no means suggesting that employers preclude themselves from delving into subjective areas of concern, such as an applicant’s poise, likeability, and overall “fit” with a company’s culture. Rather, I am simply suggesting that an employer’s primary focus during the interview process be on the applicant’s qualifications and the job itself. To ensure that interviewers maintain this focus, employers should consider the following:

Training interviewers on the applicable law;

Developing an interview guide/outline for employees to use when giving interviews;
Maintaining detailed job descriptions, which can serve as supplemental guides during interviews; and Training interviewers to ask the same core questions of all applicants.