Minimizing Legal Risk When Conducting Employment Interviews: Do’s and Don’ts

While most everyone has interviewed for a job, not many of us have sat on the opposite side of the table taking on the role of the interviewer. For those responsible for interviewing job applicants, extra care should be taken to ensure your employee interview process complies with both state and federal law.

Before reaching the interview stage an employer should review and evaluate its preliminary interview process. For instance, an employer should ensure its job descriptions are up-to-date and include the essential functions of the position. This includes accurately describing the job duties and any requirements (e.g., the ability to lift 50 pounds or maintaining a commercial driver’s license). Any requirements must closely align with the actual responsibilities of the position. It is also important to use the same application and pre-employment forms for all applicants for the same position and not treat any set of potential applicants differently. The job description itself must note your business is an equal opportunity employer and that collected applicant information is used solely to determine suitability for the position and to verify the applicant’s identity.

You must ensure the applicant screening process is consistent and based on objective job-related criteria – taking care that hiring personnel document the reasons for selecting applicants for interviews in the first place. Standardize the interview process as much as possible to include the number of interviews to be held, the questions asked, and the value assigned to each question. This will establish consistency, promote objectivity throughout the selection process, and will be invaluable if an applicant claims they were not hired due to unlawful discrimination. It is also recommended employers have more than one person interview each applicant. Doing so will limit the influence of explicit and implicit biases and will promote a wider array of perspectives in the hiring process.

At the job interview, questions should be limited to those that are reasonably related to the job for which the applicant is applying. If questions encroach on certain protected classes or topics, a claim for employment discrimination may arise. Areas of question that employers need to avoid include:

  • Age
  • Religion
  • National origin
  • Marital status
  • Childcare plans and plans to have children in the future
  • Criminal history
  • U.S. citizenship (as opposed to the right to work legally in the U.S.)
  • Medical history or disability
  • Workers’ compensation history
  • Unemployment
  • Salary history

Although polite personal conversation often accompanies an interview, what may not be so obvious to even well-trained interviewers is how seemingly innocuous conversation between an interviewer and an applicant may give rise to legal liability. This is because attempts to be personable often bring out information that is inappropriate to consider during the pre-employment process. For example, an interviewer should not ask applicants questions that might elicit information about a protected class or infringe on an applicant’s disability status. Questions to avoid include:

  • When or where were you born?
  • When did you graduate high school / college?
  • Are you married?
  • What does your spouse do?
  • Do you have children or plan on having children?
  • What clubs or organizations do you belong to?
  • Do you consider yourself to be in good health?
  • How many sick days did you take within the past year?

There are, of course, some applicants who will volunteer this type of personal information without being asked to do so or despite your best intentions. For instance, if you ask an applicant about prior leadership experience, they may mention a leadership position for a local church group. If these sorts of answers arise, avoid asking any follow-up questions relating to their response. You should document the response and the circumstances which lead to the candidate’s voluntary disclosure. To the extent possible, you should take care to avoid disclosing this answer to other hiring personnel and it may be necessary to consult with your applicable human resources manager or legal department about the matter.

At the end of the day, an employer is looking for the most qualified candidate to improve its business. It never intends to create legal risk when interviewing job candidates but that risk may arise if proper levels of precaution and care are not exercised. So before sitting down to interview your next job candidate, take some time to evaluate your own interview process and let us know if we can help!