Last summer, an Internet article on msn.careerbuilder.com offered a list of forty-three remarks made by applicants during an interview which gave pause to human resources. Some of these remarks were an obvious reason to bar employment, including the following:
- I’ve never heard such a stupid question.
- Can we wrap this up quickly? I have someplace to go.
- My old boss didn’t like me, so one day I just left and never came back. And here I am!
Obviously, such statements indicate that an applicant may not be the best fit for your company. However, other types of statements may be problematic if they are relied upon to bar an applicant from employment. They include the following:
“Can I get a tour of the breast pumping room? I heard you have a great one here and while I don’t plan on having children for at least 10 or 12 years, I will definitely breast-feed and would want to use that room.”
This is an odd statement for someone to make during an interview when she is so far off from having children. That said, if a working mother were to ask this question and be refused employment on that basis, the EEOC may take issue. EEOC regulations clearly state that there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment. Accordingly, when such statements are made, interviewers may want to avoid following-up with remarks such as, “so you do plan on having a family one day?” Furthermore, employers may want to consider discussing the company’s approach to work-life balance concerns with all applicants.
“I am an alcoholic and do not deserve this job.”
While it goes without saying that stating that you don’t deserve the job is not the best statement to make during an interview, alcoholism – and various other medical conditions – may be considered a disability under both the ADA as well as the WFEA. It is important when such medical conditions are disclosed during an interview to proceed with caution. Do not refer to the condition as a “disability,” as you do not want the applicant to be able to argue that he or she was perceived as disabled. While inquiring as to whether the individual will be able to perform the job’s duties, you may want to avoid using heavy-laden legalistic terms, such as “essential functions” and “accommodate,” unless the applicant is obviously disabled.
“When you do background checks on candidates, do things like public drunkenness arrests come up?”
This might be the biggest pitfall under the WFEA. In Wisconsin, if a job offer is rescinded after discovering a criminal conviction, the conviction must be substantially related to the position sought, and the ERD has been tightening the analysis in favor of complainants within recent years. Of course, employers are permitted to inquire as to the circumstances of an applicant’s criminal history during the interview process. However, it should be a consistent policy it is routinely followed with all applicants. Before job offers are rescinded, a substantial relationship test should be conducted.
With these pitfalls in mind – here are general tips for interviewing applicants:
1. Document. Interviews and interviewing decisions should be documented. If these hiring decisions are later challenged, you will want to be able to establish a legitimate reason for the decision that was made.
2. Train hiring managers. Train your managers on appropriate hiring decisions and the best responses to some of the tough interview issues which could arise – such as disability-related inquiries.
3. Ensure that routine interviewing practices are implemented and followed. While interviews do not need to be cookie-cutter, with the exact same questions asked of all applicants, some standard practices should be implemented. For instance, if work-life balance issues are to be discussed with applicants, discuss them with all applicants, not just female applicants. And do not conduct background checks on some applicants without conducting them on all applicants.
4. Review hiring information. Your company may want to review the demographics on the applications received, those who are interviewed and those who are hired to ensure that decision makers are not pre-screening out qualified minority applicants. For instance, if you notice that 90 percent of the applicants are minorities, but only 10 percent of those interviewed are minorities, this may be an issue that needs to be addressed before a failure to hire claim is asserted.