Fair hiring laws were enacted to give every job candidate an equitable shake in the interview and selection process. Yet, nearly 60 years after the first of these guidelines became law, job candidates are still asked questions that are illegal and irrelevant to job performance. The key to eradicating this kind of behavior — and avoiding legal exposure — is knowing how to ask legal interview questions.
Planning and Preparing Are the First Steps
The planning process prepares you to ask candidates about only the essential skills and qualifications required to do the job and helps prevent you from asking off-the-cuff questions that could be illegal. Consulting with HR professionals is also a critical part of the preparation process.
The job of an HR professional is to train and guide hiring managers and other company interviewers in fair hiring practices. Many companies mandate a formal training program before any employee is permitted to interview candidates. It’s also a good idea to provide a written overview for all interviewers and a brief refresher curriculum from time to time.
As the law is always in flux, it’s also the responsibility of the HR department to be aware of updates in the law which can shape the legal interview questions you can ask.
Job Relevance is the Key Factor
Your interview questions should be designed to determine a candidate’s capability to perform the essential functions you have defined for the job. Just be sure to stick to job-relevant inquiries, and don’t make assumptions about a candidate’s ability or disability.
For example, let’s say you’re interviewing a candidate who uses a wheelchair for an account manager position, and an essential function of the job is to visit client sites. It’s perfectly acceptable to ask how the candidate would perform this essential function, with a question like:
“This job will require you to be out of the office meeting with clients several days per week. Do you see any issue with this?”
It is not okay to say to this same candidate questions like: “How long have you been disabled?” or “What is your particular disability?”
This is also true for other characteristics, such as family size. For example, while you cannot ask a candidate if he or she has children or has adequate childcare, you can ask about their ability to perform the job with a question such as:
“This job requires you to travel overnight about two days per week and attend out-of-town conferences once per month. Does this travel schedule present a problem for you?”
Legal and Illegal Inquiries
The following are some of the key areas that are covered by fair hiring laws. You will see a trend in what are considered legal interview questions and what are not — essentially, you cannot ask questions that will reveal information that can lead to bias in hiring, but you can ask questions that relate to job performance.
Affiliations: Do not ask about clubs, social organizations, or union membership; do ask about relevant professional associations.
Age: Do not ask a candidate’s age other than, “if hired,” can the candidate produce proof that he or she is at least 18 years of age.
Alcohol or Drug Use: The only allowable question relating to current or past drug or alcohol use is, “Do you currently use illegal drugs?”
Criminal Record: Do not ask if a candidate has been arrested; you may ask if the candidate has ever been convicted of a crime.
Culture/Natural Origin: You may ask if the individual can, “upon hire,” provide proof of legal right to work in the United States. You may ask about language fluency if it is relevant to job performance.
Disability: You may ask if candidates can perform essential job functions, with or without reasonable accommodation; and you may ask them to demonstrate how they would perform a job-related function. You may ask about prior attendance records, and you may require candidates to undergo a medical exam after an offer of employment has been made.
Marital/Family Status: Questions about marital status and family issues are discouraged except as they relate to job performance, as in the childcare example above.
Personal: Avoid questions related to appearance, home ownership, and personal financial situation.
Race/Color: No race-related questions are legal.
Religion: If Saturday or Sunday is a required workday, you may ask candidates if they will have a problem working on those days.
Sex: You may ask if a candidate has ever worked under another name. Be sure not to make gender-related assumptions about job capabilities.
How to Deal with Information That is Volunteered
Despite your careful preparation and question selection, some candidates will volunteer information that you would prefer not to know. The best way to handle this situation is not to pursue it or to make note of it. You can’t erase the information from your memory, but you can eliminate it as a discussion point and selection factor.
Consistency Equals Fairness
Carefully planned questions and a structured interview process that is the same for all candidates will ensure equal treatment of all who apply. Keep the focus on the job requirements and how each candidate has performed in the past.
Perhaps most importantly, make fair hiring part of your company’s mission and value statement, championed from the top down and an integral part of the selection process.
Use Legal Interview Questions to Get Your Next Hire
Knowing what questions to ask — and not to ask — is one piece of the hiring puzzle. And hiring is just one of the many tasks on your plate. Start with a free job posting on Monster
Legal Disclaimer: This article is not intended as a substitute for professional legal advice. Always seek the professional advice of an attorney regarding any legal questions you may have.