MANAGING STAFF

Job Interviews:
How to Ask Personal Questions without Committing Discrimination

The job interview process is a breeding ground for discrimination complaints. One common mistake: asking job applicants inappropriate questions about their nationality, marital status, religion, disabilities and other characteristics that discrimination laws ban you from considering when making hiring decisions. Applicants on the receiving end of such questions are apt to come away feeling like you discriminated against them, especially if they do not get the job. Yet, it may also be legitimate to seek this kind of information to evaluate an applicant’s credentials; the problem, in other words, is not necessarily the question but how you phrase it.

The bottom line: To avoid discrimination complaints, you need to know what questions you can and cannot ask. This article explains where to draw the lines.

Why Certain Job Interview Questions Discriminate
"Are you pregnant?"

You don’t have to be an HR manager to just know that this is a question that should not be asked during a job interview. The instinct is sound. But why is asking a job applicant if she is pregnant illegal?

Answer: Technically, it is not illegal. The anti-discrimination laws do not say employers may not ask questions about pregnancy. What the laws do say is that employers cannot use gender, including pregnancy, to make hiring decisions. The question "are you pregnant" suggests that you do factor pregnancy into your hiring decisions. The other problem with "are you pregnant" is that it is a question you would only ask female applicants.

When You May Ask Personal Questions
The rules are meant to combat the stereotype that women who want to have children are less dedicated to their jobs and ensure women equal hiring opportunity. But what if the employer has a legitimate, nondiscriminatory motivation to ask about pregnancy? For example, what if the job involves exposure to chemicals shown to cause miscarriages or birth defects?

The laws do allow employers leeway for these circumstances. Rule of thumb: You may consider personal characteristics protected against discrimination to the extent necessary to evaluate the applicant’s ability to perform the essential functions of the job. The corollary is that you can ask questions during job interviews to obtain the personal information you need for your evaluation as long as you phrase your questions the right way.

The Questions You Can and Cannot Ask
Over the years, the EEOC has issued guidance explaining which pre-employment questions employers can and cannot ask. To make your life easier, we assembled the piecemeal guidance into a single, comprehensive chart.

Pre-Employment Inquiries
CAN’T ASK CAN ASK COMMENT
What’s your maiden name?
  • What’s your current name?
  • Have you ever been known by any other name?
Maiden name may indicate marital status, national origin or ancestry
  • Are you married/divorced/single/widowed?
  • Are you planning to get married?
  • Are you dating anyone?
  • Listing Mr/Mrs/Ms/Miss:
  You may not ask women or men questions or seek to get information about their marital status
  • Name of spouse?
  • Where does your spouse work?
  • May spouse get transferred?
  • Other questions about spouses
Describe travel/relocation requirements of job and ask applicants if they can meet them Info on marital status and dependents required for payroll, etc., can be obtained after job offered
  • Are you pregnant?
  • Do you use birth control?
  • Are you planning to have children?
Describe the physical requirements and hazards of the job and ask applicants if there is any reason they cannot perform them You may ask about pregnancy after offering the job to determine if the applicant needs accommodations
  • Do you have any children or dependents?
  • What are your childcare arrangements?
  • Any other questions about children or dependents
Describe the schedule and overtime requirements of the job and ask applicants if can meet them, e.g., "this job requires working on weekends—will that be a problem?" Questions about children and dependents are evidence of intent to discriminate on the basis of gender and/or family status
Are you related to or friends with anyone who works for the company? Describe company’s anti-nepotism policy and ask applicants if their hiring would create any problems under it Family relations and friendships with other employees have no bearing on an applicant’s competence
  • How old are you?
  • What is your birth date?
  • Asking for a birth certificate
  • When did you graduate high school?
The law says you must be at least X years’ old to work/do this job. Is that a problem? Asking about age is evidence of discrimination unless an age limit or requirement is a bona fide occupational qualification
  • Are you a U.S. citizen?
  • What country are you from?
  • Where were you or your parents born?
  • List all previous addresses/military service.
  • Are you legally entitled to work in the U.S.?
  • Do you read, understand, speak and/ or write all the languages necessary to do the job as specified in the ad or job description?
You may not ask questions or seek information about an applicant’s nationality or citizenship
What kind of military discharge did you
receive?
  • Did you serve in the military?
  • What periods of service?
  • What training or work experience did you receive while in the military?
You can ask whether applicants served in the military but not about the kind of discharge they received
  • What is your race?
  • Questions about race or color including color of skin, hair, etc
  Although race cannot be an occupational requirement, employers are allowed to collect racial information to implement affirmative action plans, recruit minorities and other legitimate, non-discriminatory purposes
  • What’s your religion?
  • What church do you belong to?
  • Can you work on Sabbath, specific religious holidays, etc.?
  • Asking for a reference from the clergy
  Asking about religion or even availability for work due to religious restrictions is evidence of religious discrimination except in very narrow circumstances
List names, dates and locations of all schools attended List grade level completed/degrees obtained/courses taken Okay to ask for names of technical, vocational and post-secondary schools unless it would reveal religious affiliation, nationality or race
  • Do you have any physical/mental disabilities?
  • Do you have X illness or disability?
  • Do you have any health problems?
  • Do you have a disability that would interfere with your ability to perform the job?
  • Are you in good health?
  • Have you ever been treated for alcohol or drug addiction?
  • How much alcohol do you drink each week?
  • What medications do you use?
  • Have you ever been treated for emotional or psychiatric problems?
  • Are you under a doctor’s care?
  • Are you receiving counseling or therapy?
  • Do you have any allergies?
  • Have you ever received workers’ compensation?
  • How many sick days did you take last year?
  • Describe essential requirements of the job, as specified in the job ad and job description and ask if applicant can perform them with or without reasonable accommodations
  • Describe or demonstrate how you would perform the essential functions of the job
  • Can you meet the attendance requirements of this job?
  • Do you use illegal drugs?
Medical questions, tests, evaluations may be appropriate after job is offered to determine need for accommodations
  • Have you ever been arrested?
  • Have you ever been convicted of an offense?
  • Do you have a criminal record?
Asking about a conviction that is related to the job is allowed if the employer can prove that it has a business necessity to justify use of a conviction record based on 3 factors:

  • Nature and gravity of the offense
  • Amount of time elapsed since the conviction and/or completion of the sentence
  • Nature of the job being sought
  • Criminal records questions may violate state laws even if permitted by EEOC
  • Questions about arrests are never permitted
  • Criminal background and other checks might be allowed after the job is offered
  • Height:
  • Weight:
  Height and weight requirements are considered discriminatory unless the employer can justify them as a bona fide occupational qualification
  • Do you own/lease your home/car?
  • Have your wages ever been garnished?
  • Have you ever declared bankruptcy?
  Questions about a job applicant’s financial situation violate fair credit and consumer credit laws unless those financial considerations are essential to the job in question

 

Note: In many cases, the ban on asking personal questions and seeking personal information during the pre-employment phase no longer applies after you make the applicant a job offer and before he/she starts work.

Takeaway: Labs, like all employers, need to make sure their hiring processes are compliant with the law and don’t discriminate or otherwise violate federal and state law.

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