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.
The interview room does not have to be such a perilous place, however. If you follow three simple rules, you should avoid legal trouble:
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.
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:
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.