Any question prohibited on a job application is prohibited in an interview. However, while an application is in writing and relatively easy to limit to acceptable questions, interviews are verbal and are often quite different from one another. As one question leads to another during the course of the interview, it’s not uncommon to inquire about subjects that are prohibited in the employment context.
Avoiding Overpromising in Interviews: You must train supervisors who participate in the interview process not to exaggerate the employment opportunity no matter how anxious they are to recruit the candidate. For example, in Helmer v. Bingham Toyota Isuzu, an interviewing supervisor created significant liability for his employer when he misrepresented that the candidate would earn substantially more than at the candidate’s current job. The candidate accepted the new job, but was fired after several months of complaining that his earnings were lower than represented. Unable to return to his former job or find other work matching his former income, the disappointed employee sued and was awarded more than one million dollars. The court said that damages are recoverable against an employer who induces a candidate to leave secure employment by knowingly making false promises about the terms of his future employment.
Developing Interview Questions: Never ask a job candidate any of the following questions:
You can ask the following questions:
Taking Notes During an Interview: If you talk to a candidate at the time he/she gives you his/her completed application or during an interview, you may be tempted to write on the candidate’s application and/or resume or in a separate notebook. Unless you take complete, legible notes that are not open to any misinterpretation and are in no way discriminatory, don’t do it. Upon close examination, notations taken during an interview can subject you to discrimination claims.
Consider the following real-life scenario: An employer made a notation on the application of a candidate for a position at the jewelry counter of a large department store. While he intended the notation to mean “no experience selling jewelry,” the words “no jew” resulted in the candidate filing religious discrimination charges against the store.
If you are taking notes about the candidate’s responses to questions, be sure that you are not using abbreviations or a coded rating system that could be incorrectly interpreted at a later date. Keep objective records of why a candidate was or was not hired. For example:
Be sure your notes evaluate criteria actually necessary to perform the job. For instance, when interviewing for a telemarketer, your notes should reflect items such as “good interpersonal skills, types 75 wpm,” rather than “handsome, blue suit.”
Conducting Consistent Interviews: To ensure that the interviews you conduct do not expose you to lawsuits, create a list of acceptable questions and stick to them. You can ask all of the questions on your list or only those you feel pertain to a particular job. Be sure all questions are strictly job-related, nondiscriminatory and not an invasion of the candidate’s privacy. Before the interview, review your entire list and clearly mark those questions you believe are most related to the position for which you are interviewing. Then, ask each candidate only those questions you have marked. If more than one person is interviewing candidates, be sure each interviewer has the same list of questions. Instruct each interviewer not to deviate from the selected questions.
Asking Appropriate Questions: Do not ask questions about marital status or children. For example, you cannot ask a candidate if she is pregnant, has children or is planning to have children. If you know a candidate has children, you cannot ask if he/she has made provisions for child care. Similarly, if you would not ask a question of a man, do not ask it of a woman (for example, “If you became pregnant, how much time would you need away from work?”).
Shelley v. Geren highlights the need for employers to avoid asking any questions that can be interpreted as discriminatory. Devon Shelley, a 54-year-old assistant chief of contracting with the Army Corps of Engineers (Corps), was seeking a promotion to the chief of contracting position. He was well qualified for the position with 29 years’ experience in contracting. The five-member hiring panel selected a less-experienced, 42-year-old candidate, for the position.During the recruitment process, two of the panel members inquired about the projected retirement dates for employees in the contracting division. After being passed over for the open position, Shelley sued the Corps for age discrimination. A lower court dismissed the case, but the Ninth Circuit found that there was sufficient evidence to permit the case to go to trial. The Ninth Circuit considered as direct evidence of discriminatory bias the fact that two panel members requested the projected retirement dates. Especially important was the timing of the request, which was made during the recruitment process. The court found that a jury could “infer from [these facts] that they considered age and projected retirement relevant to the hiring decision.”
Some questions about a candidate’s education can be interpreted as seeking information on age. Though it is fine to ask where a candidate went to school, asking what year he/she graduated from high school or college, or inquiring if he/she is a “recent graduate” can be deemed discriminatory.
Due to potential liability under the Americans with Disabilities Act (ADA) and FEHA, familiarize yourself with the basic requirements of those laws before conducting interviews. Though it may seem only natural to ask certain questions of a candidate whose physical disability is obvious to you, many of those questions may be strictly prohibited.