The spontaneous and unpredictable nature of the job interview can create hidden traps for the unwary employer. Things that you say with the most innocent intent can be misconstrued as prejudicial -- or used later as fodder for a lawsuit.
For example, a casual discussion about a female applicant's upcoming marriage could lead you to ask whether she plans to have children -- which could lead the applicant to believe that you discriminated against her based on gender if she doesn't get the job. Or, your optimistic prediction about the company's future success might convince an applicant to take the job -- and to later sue you for making false promises, after he is laid off when the company faces an economic downturn.
Three Rules to Abide By
The interview room does not have to be such a perilous place, however. If you follow three simple rules, you should avoid legal trouble:
- Don't ask about anything that the law prohibits you from considering in making your decision. For example, don't ask about an applicant's race or religion, because you are not allowed to consider these factors in making your decision. The chart below provides some ideas on how to get information you need while staying within the bounds of the law. And don't panic if an applicant raises a delicate subject -- such as disability or national origin -- without any prompting from you. You can't raise such subjects, but the applicant can.
- Respect the applicant's privacy. Although federal law does not require you to do so, many state laws and rules of etiquette do.
- Don't make promises you can't keep. If you exaggerate your company's prospects in an effort to sell the applicant on your business, and the applicant accepts the job because of those statements, you might face a lawsuit for fraud. And, if you make promises about job security -- for example, that the company doesn't fire employees who are performing well -- you will have to keep them, or risk a lawsuit for breach of contract.
Once you know about these pitfalls, it's not that difficult to stay on the right side of the law. As long you focus on the applicant's ability to do the job (that is, don't ask about prohibited topics) and are truthful (that is, don't tell the applicant anything false or misleading), you'll do just fine.
The best way to avoid improper questions is to do some preparation. Before the interview, create two lists: one of all the tasks that the applicant will have to perform as part of the job and the other of all the skills and experience that you require for the position. This will help you focus on what you really need to find out: whether the applicant can do the job. At the interview, you can use your lists as a guide to come up with questions about the applicant's qualifications.
The lists will help you in a second way. If you use each list with each applicant, you can ensure that you are asking all applicants essentially the same questions. This will help you avoid the appearance of treating some applicants differently from others.
To avoid questions that violate an applicant's privacy, good taste is your best guide. Don't ask any applicant about his or her sex life, beliefs about contraception and family planning, or opinions about same-sex relationships. Don't ask any applicant about personal finances, religious beliefs, or political affiliations.
If you have questions about how to avoid discriminating against applicants with disabilities, an area that many employers find tricky, see Nolo's article Avoid Disability Discrimination When Hiring New Employees.
Lawful and Unlawful Inquiries
Here are some examples of ways that you can get the information that you need without running afoul of anti-discrimination laws. For more information on age discrimination and disability discrimination, see Nolo's articles Avoiding Age Discrimination and Avoid Disability Discrimination When Hiring New Employees.
|Subject||Lawful Inquiry||Unlawful Inquiry|
|Age||Are you 18 years of age or older? (to determine if the applicant is legally old enough to perform the job)||How old are you?|
|Marital status||Is your spouse employed by this employer? (if your company has a nepotism policy)||Are you married?|
|Citizenship||Are you legally authorized to work in the United States on a full-time basis?||Are you a native-born citizen of the United States? Where are you from?|
|Disability||These [provide applicant with list of job functions] are the essential functions of the job. How would you perform them?||Do you have any physical disabilities that would prevent you from doing this job?|
|Drug and alcohol use||Do you currently use illegal drugs?||Have you ever been addicted to drugs?|
To avoid making inflated promises, follow one simple rule: tell the truth. After all, job applicants are trying to figure out whether the job will fit with their career goals, skills, and lives outside the workplace. They deserve to know the truth so they can make the right decision.
This strategy will not only keep you out of legal trouble, but also increase your chances of finding an employee who is right for the job and for your business. After all, no one wants a disgruntled employee on the payroll. If you have told the applicant the truth and he or she wants the job, then you've probably found a good fit.
Here are a few rules that will help you avoid common promise pitfalls:
- Don't make predictions about your company's financial future. Even if you honestly believe that you're heading for the Fortune 500, keep your optimism to yourself. If the applicant asks about the company's prospects, stick to the facts. If you make any statements about what the future might bring, clearly identify them as hopes, not predictions. For example, you might say "our business has doubled in each of the last three years, and we're hoping that growth trend will continue," but you shouldn't say "we'll be the industry leader by next year."
- Don't estimate the future value of stock options. Let's face it: You simply can't know what your stock options will be worth in the future. It's fine to explain your stock option program to applicants and to tell them that you hope the options will be valuable, but don't say things like "when these options vest, we'll all be millionaires!"
- Don't say anything that might limit your right to make personnel decisions in the future. If you tell an applicant that you only fire workers for poor performance, this can limit your ability to terminate that person for any other reason -- such as personality conflicts or economic downturns -- if he or she accepts the job. Similarly, if you promise pay increases at regular intervals, the employee could hold you to that promise, even if your company's financials or the employee's performance doesn't warrant a raise.
- If layoffs are likely, say so. If your company is considering staff reductions and there is even a remote chance that the applicant you are interviewing might lose that new job as a result, disclose this before the applicant accepts the job. Otherwise, you may find yourself slapped with a lawsuit, especially if the employee left a secure job elsewhere to come work for you. Of course, this strategy might make it difficult to find new employees, but it really isn't fair (or legal) to hire people on false pretenses.
- Accurately describe the position. Don't exaggerate the job requirements to land an applicant and don't play bait and switch by offering an applicant one job, then placing him or her in another. It may not matter to you who does what, but it will matter to the employee. And an employee who accepts the position based on statements that turn out to be false will have grounds for a lawsuit.
For a complete guide to your legal rights and responsibilities as an employer, get The Employer's Legal Handbook, by Fred Steingold (Nolo). This is the plain-English legal resource that every employer, manager and HR professional needs.