What questions are considered illegal to ask during the interview process? Bethany Salvatore and Bryant Andrews discuss interview do’s and don’ts as well as best practices.
Bryant: Hi. My name is Bryant Andrews and joining me today is my colleague, Bethany Salvatore. We are labor and employment attorneys with the law firm Cozen O’Connor and today we’re going to cover some interview do’s and don’ts as well as some best practice tips.
Bethany: Interviewing an applicant seems like a pretty straightforward process. That said, it is imperative that an interviewer ask legally permissible questions.
Bethany: We’re going to talk with you about some questions right now that may verge on illegal questions in the interview process.
Bryant: As a general note, we want to make sure that when we’re asking applicants questions during the interview, we’re steering clear of those that might fall into the quintessential Title VII protected categories area. These includes questions such as race, national origin, religion, sex, etc. For obvious reasons, those can cause some legal problems down the road.
Bryant: What might come across as a surprise is that you also want to steer away from those questions that kind of come up during the small talk part of the interview. Those questions might be on the topics of familial status, education, caregiver responsibilities, arrest and conviction records. All of those can also be very problematic.
Bryant: Bethany, I think a great way we can kind of tackle some of the questions that might be permissible versus some that might border along risky would be if I ask you some questions from some of these subject areas and you could tell me whether yes or no whether they’re legally permissible.
Bethany: Sure. Absolutely.
Bryant: Let’s start with questions about familial status.
Bryant: The first one, “Are you married?”
Bethany: That’s a no.
Bryant: “How many children do you have?”
Bethany: Also, a no.
Bryant: Okay. “Do you have responsibilities other than work that might interfere with your job requirements such as traveling?”
Bethany: That’s a maybe.
Bethany: So, if traveling is an essential function of the job, than that question is appropriate. If it is not, then I would steer clear of that question.
Bryant: Okay. “Which daycare provider do you prefer?”
Bethany: No. That is not appropriate.
Bryant: “What hours or shift can you work?”
Bryant: And finally, “Can you work weekends and or holidays?”
Bethany: Again, if weekends or holiday work is part of the job, then yes, otherwise I would stay clear of that question, and for my yesses I would say all of those questions were focused on the job requirements not focused on extracurricular or other activities.
Bethany: When an interviewer is staying true to, “What are the job requirements and what do I need to know to determine whether this person can actually perform the job,” those are all okay. It’s when you get into questions like, “How many kids do you have? What daycare do you send your children to?” How are they job related? They’re not, so those questions should not be asked.
Bryant: Okay. For myself and for our viewers, how about we do one more category example.
Bryant: Let’s tackle education this time.
Bryant: First question, “When did you graduate college?”
Bethany: That’s a no. You should not be asking that question.
Bryant: “What school did you attend?”
Bryant: “What did you study?”
Bryant: “Were you in the class of ’75 with my friend, Ella.”
Bethany: That’s a no. You should not be asking that question.
Bryant: And lastly, “What degree did you earn?”
Bethany: Absolutely. That’s an appropriate question to be asked and I think too oftentimes when it is education-based, an education-based question, interviewers can feel that they can go kind of in any direction that they want when they’re asking those education-based questions, but particularly your question about the, “Did you graduate in ’76 with my friend, Ella?”
Bethany: That to me is a red flag because that could show unintentionally the individual’s age. If that person doesn’t get the job, well then now they might point back to you asking that question and saying, “Well, you know all of a sudden I was doing really well in this interview until I disclosed that I graduated in ’76 and that’s when the interview kind of turned because of my age.”
Bryant: Okay. Okay.
Bryant: Bethany and I could cover a lot more topics on the interview area including a pay history, we mentioned briefly disabilities, but we think you can probably begin to see the trend here that those questions that are focused on the specific job requirements and expectations tend to be ones that you can ask.
Bryant: Whereas those that are focused on the individual outside of that scope are far more risky. We would advise you take that into account when crafting your interview questions.
Bethany: Yeah, and I would say too the questions themselves obviously are very important, but equally important is documentation of those questions that you’re asking and the feedback that you are receiving.
Bethany: By way of example let’s say this is an office-facing position, you have two female applicants for the position and the interviewees come in. The first interviewer is a Caucasian female. She is dressed kind of like how I’m dressed today, suit, pearls, looks what we would consider to be professional, and the other applicant is an Asian woman who is wearing Lululemon yoga pants and a t-shirt.
Bethany: When these applicants come in, the interviewer let’s assume is asking really appropriate questions about the job duties and responsibilities and whether those individuals can fulfill those roles and responsibilities and they’re taking diligent notes throughout the process.
Bethany: If at the end of the process though there are two sets of notes and one of the sets of notes says, “The Asian applicant’s appearance just didn’t quite fit our mold,” right?
Bryant: Mm-hmm (affirmative).
Bethany: That to me is a red flag because you and I sitting here think, “Okay, we could probably guess what that interviewer was thinking.” The interviewer may have been thinking, “This is an office, this is a client-facing office position. Clearly the applicant maybe didn’t understand what the role was because yoga pants in the workplace aren’t appropriate,” and maybe it’s a judgment issue where you’re saying, “Yeah, I don’t know if I trust that person’s judgment as part of the overall evaluation as to whether or not to hire this person,” but in a vacuum and with a savvy plaintiff’s attorney, that comment, that stray remark of, “The appearance didn’t work for us and our culture,” is very problematic.
Bethany: When taking notes just be sure that you are really explaining why you are going towards one applicant or leaning towards one applicant versus another.
Bryant: Bethany, if I’m an employer and I’m listening here, I’m sitting here thinking, “What do I do if an applicant during an interview just starts willingly offering some information that teeters upon some of the more risky subjects we’ve talked about? How do I address that if I’m the interviewing manager?”
Bethany: Yeah, that’s a great question. What I would say is if by way of example, if you have an applicant and you say, “How are you today,” and the applicant responds with, “Oh I’m terrible because my X-Y-Z disability is currently flaring up and I had a very difficult time getting here today.”
Bethany: One of two approaches can be taken. One would be you know simply acknowledge professionally and move on to the questions that you had planned to ask, and another approach would be to make sure that the individuals are saying that they struggled to get into work or whatever the case might be that if a reasonable accommodation is needed at that point in time, including in the interview process, that such an accommodation can be made.
Bryant: Absolutely, and Bethany do you ever think there’s a time where it’s appropriate just to kind of maybe get a head nod, be polite, and maybe diverge the conversation. Could that be rude or is that appropriate?
Bethany: No. I think that’s absolutely appropriate. I mean you should certainly acknowledge what they’re telling you and then focus on the questions that you had planned.
Bryant: Absolutely, okay.
Bryant: I think there’s one more topic I find interesting and I actually think it’s one of your bread and butter’s here is restrictive covenants. How do we address restrictive covenants during an interview process? Is this something you’ve dealt with and if so, can you share some insight on what that looks like?
Bethany: Sure. That’s a great question, and I think that’s a question that every single candidate should be asked on their way in and it should be on the list of questions that you are asking and the question is, “Do you have any restrictive covenants that would prevent you from performing the job duties here at our organization,” and the reason why that question is so important is if you’re getting out in front of it and you are able to get information from that applicant, “Well yes, actually I did have a two year noncompete with my prior employer, but I really don’t think that you are a competitor. Maybe you are, maybe you’re not.”
Bethany: That should flag the interviewer to run it up the flagpole, get legal counsel involved to make a determination before a hire is made. As to whether or not that person’s hire by the company could be deemed tortious interference with the preexisting contract that the individual had with their prior employer.
Bethany: Asking that question up front can save a significant amount of headaches and costs on the back end.
Bryant: Well thank you so much for tuning in again with us. We always have a great time sharing this information with you. We want to encourage you if there’s any questions you have about anything we’ve covered or anything that we may have skipped over, please feel free to reach out to us. Our information is in the description. We’d be more than happy to speak with you.
Bryant: Until next time, have a great one and we look forward to seeing you next month.
Bethany: Sounds good. Take care.
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