What are the ten most common interviewing questions that could cause legal problems?
Unfortunately, there's no neat list of illegal questions. Even if you don't mean to discriminate, the implications of some questions that managers could ask during an employment interview may cause a court to declare them (and your firm) discriminatory. For instance, asking if an applicant can come to work on weekends may seem innocuous, but courts may rule it discriminatory if your only reason is based on religious belief.
Interview questions must be strictly job-related. Avoid questioning applicants about such subjects as:
- Race, color, ethnic background, or family history.
- Language usually spoken at home.
- Membership in ethnic clubs or organizations.
- Marital status.
- Children's ages or child-care arrangements.
- Spouse's occupation.
- Sexual orientation or preferences.
- Church attended or religious beliefs and practices.
- Nature or extent of disabilities.
- Medical history.
- Age or birth date.
- Arrest records.
- Wage attachments or garnishments.
Also, you cannot ask questions that are asked of one sex only— for instance, you cannot ask only your female candidates if they can type.
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The simplest guideline is to focus on selection criteria that relate to the applicant's qualifications for and ability to do the job you have to fill. If you do so, you'll be heading in the right direction.
For instance, it is legal to ask if a person can meet the work schedule and attendance requirements, but it is illegal to ask specifics about the person's spouse, the spouse's employment, who will look after any children, or any previous medical problems. It is legal to ask about training and experience in the U.S. military but it is illegal to ask about reasons for discharge or about service in the military of other governments or for copies of discharge papers. It is legal to ask about how long the applicant plans to stay on the job or about any expected absences, providing the questions are asked of both men and women, but it is illegal to ask direct questions about previous pregnancies or possible future pregnancies. Want still more comparisons? It is legal to ask a person's weight or height if either weight or height is a requirement for the job and no one can or has held the job without meeting the stated requirements. But it is illegal to ask about height or weight if there is no job requirement related to these things. It is legal to ask if a person can work lawfully in this country and can provide proof of this after hiring but it is illegal to request proof of citizenship or ask of what country the person is a citizen.
What are "reasonable accommodations"?
There are numerous "reasonable accommodations" that employers can make to assist qualified individuals with disabilities in the performance of essential job functions. The following list identifies the nature of accommodations and some specifics. Keep in mind that what might be "reasonable" for one employer may not be for another. These may include:
- Making facilities accessible to and usable by individuals with disabilities (e.g., installing ramps and automatic doors).
- Job restructuring (e.g., removal of physical activities that are not essential to the position).
- Offering part-time or modified work schedules (e.g., allowance of a day off for therapy).
- Adjusting or modifying selection procedures (e.g., providing a reader or interpreter).
How do I legally discuss accommodations with the applicant?
Concerns about hiring a person with a disability often centers around the person's ability to perform job duties and meet attendance demands. While discussing this issue with someone disabled may seem awkward, it can be made a manageable situation if you develop and use a standard set of questions to identify whether or not each applicant is able to perform the essential job functions. For instance, if a job requires lifting heavy objects, the list of questions might include, "In this job, you will need to lift 50-pound bags of concrete. Can you meet this requirement?" The interviewer simply reads each job function and asks the applicant if he or she can perform the function with or without accommodation. If the candidate indicates the need for an accommodation, the interviewer writes down a detailed description of it.
The ADA outlines several situations that employers may encounter when interacting with an applicant and what the employer may and may not ask. They are:
- If the candidate has a known disability (e.g., a missing arm) that would appear to interfere with or prevent job performance, the manager may ask the candidate to describe how he or she would do the task. The focus should be on determining the accommodation that would be needed.
- If the candidate has a known disability that does not appear to interfere with a job function (for instance, uses a wheelchair but the jobholder can sit and do the work), you cannot ask for a description of how he or she would do the work.
- If the manager suspects a candidate has a disability, he or she cannot ask for a description of how he or she would do the work.
- If a candidate voluntarily indicates that he or she would need accommodation to perform a task, you would be required to get a detailed description of the requested accommodation.
- If a candidate indicates that he or she cannot perform an essential job function, even with accommodation, the candidate would not be qualified for the job.
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ADA guidelines allow employers to ask sometimes how an individual will perform essential job functions. However, under the ADA, the employer is never allowed to ask an applicant about the disability itself.
Among the issues about which you can't ask:
- Existence of a disability.
- Nature or severity of any disability.
- Prognosis of any condition or disability.
- The need for special leave because of the disability.
- Past worker compensation claims.
- Past, present or future treatment by a medical doctor.
- Use of prescription drugs.
- Treatment for alcohol or drug abuse.
- Major illnesses or surgeries.
- Current state of mental or physical heath.
- Physical characteristics (e.g., weight, height).