Lawful and Unlawful Interview Questions- Avoid costly litigation

Many employers walk a fine line during the interview process, asking questions that could land them in court for discrimination.  Unfortunately, many candidates feel compelled to answer these questions out of ignorance or fear of appearing “uncooperative,” the kiss of death in the job quest.  The cost of an employer defending itself against a discrimination case lodged by a savvy prospective employee can hit the six-figure mark.  It is consequently even more critical to conduct lawful employment interviews to avoid employer liability and to protect the individual’s rights.

The guiding principle behind any question to an applicant should be, ‘Is the question relevant and a job-related necessity?’  During an investigation by the Equal Employment Opportunity Commission (EEOC), the intent behind the question will be examined to determine if any discrimination has occurred. Questions asked must be job-related and the interviewer should ensure that all questions asked are absolutely necessary in order to judge the qualifications, level of skill and overall competence of the job applicant.

Although this is a subject that is detailed and, at times, complex, let us briefly discuss the main areas that affect discrimination cases in this area of employment law:

  • Disparate Impact – The EEOC’s focus is protected groups and ensuring that interview questions do not yield information that can have a discriminatory effect by screening out certain groups of individuals, such as the aged, minorities, etc.
  • Pre-Employment Inquiries – State and federal equal opportunity laws prohibit the use of pre-employment inquiries that are not justified by some business purpose. Questions must be solely aimed at determining the applicant’s qualifications. Some questions that would be illegal include inquiries about the applicant’s year of graduation from school, country of origin or what child care arrangements the applicant has in place.
  • Race – Unless the information is legitimately needed for affirmative action data, as seen on most applications, a prospective employer should not ask candidates any questions regarding race, gender, religion or national origin.
  • Military Discharge – Military discharge inquiries are not illegal but are not recommended as the answer is not usually relevant to general business necessities.
  • Educational Requirements – Certain jobs require applicants to meet specific educational requirements. However, employers should ensure that the educational requirements listed for the job do not exceed what is needed to successfully perform the duties of the job. In many cases, these requirements can violate Title Vll (see anti discrimination blog) anti-discriminatory laws if they disproportionately exclude certain racial groups.
  • Arrest and Conviction Records – These records should not be used to exclude applicants from being hired unless the conviction applies to the nature of the job.  This practice could again disproportionately exclude certain racial groups. Companies should make sure that when they administer background checks, they are in compliance with EEO laws. ( see administering background checks blog).  On April 25, 2012 the US EEOC issued guidance on employer use of criminal background checks. It is the EEOC’s stance that this guidance does not prohibit employers from using criminal information in their hiring practices, but the employer must take steps to avoid violating discrimination laws under the Title Vll of the civil rights act of 1964. To access the guidance document please use this link: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
  • Application Forms – Application forms must be used with caution and it is a good idea to have legal counsel review these forms prior to their use.  As discussed above, the use of certain questions, such as religion, arrest record and year of graduation, could be questionable. Employers should also avoid asking for social security numbers on applications. The applicant’s social security number should only be used in conjunction with completing I9 forms, W4 forms or to administer a background screening.

Finally, it is recommended that employers and HR personnel always refer to the appropriate state employment laws for guidance as these can sometimes differ from federal EEO laws. While federal EEO law may not prohibit certain hiring practices, those same practices may be prohibited on a state level. In addition, we are all advised to tread lightly as the EEOC has its own guidelines for protecting individuals from discrimination.

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