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Human Resources
What you can — and can't — ask in a job interview

Shortly after moving here in the late 1980s I interviewed for a job with a small business. The owner’s wife had several questions for me. Was I married? Did I have small children that might need my attention during the workday? Did I plan to have more children? Did I have any health issues that might cause me to miss work? When I got home I told my spouse there was no way I’d work for someone who asked so many illegal questions! However, I actually ended up taking the job and helping the business create policies and procedures to keep them from crossing over into this illegal territory in the future.

Today my business works with many employers throughout the West Sound and we’ve learned that it’s not uncommon for small businesses to have questions about what they can and cannot ask prospective employees in a job interview. How do they get the information that they need to know they are making an informed decision without opening themselves up to a claim of discrimination?

While you may think you are innocently trying to get to know your job candidate to see if the person is qualified for the position and a good fit for your company’s culture, you can quite easily drift into areas that will open you and your business up for a charge of discrimination. Preparing your questions in advance of the interview will help you pose the questions safely and get the information you need to make your decision.

Prior to the interview, spend time considering the qualifications and attributes that are important for the position and the company. Then frame the questions in a way that will access the information without crossing the line. Be sure you ask each candidate the same questions in the same way. Don’t tailor your questions by gender, race, religion, etc.

Unless it is a bona fide occupational qualification, you cannot ask questions regarding race, religion, creed, color or national origin. However, you could ask what languages they speak or write fluently, if that is relevant to the job. You may ask if they are legally able to work in the United States, and if they have ever worked here under another name. Some businesses are open on weekends and on religious holidays, and are concerned about employees wanting religious holidays off for observance. Instead of asking about their religion, provide the candidate with a copy of the work schedule and ask them if they will have any conflicts with it. You don’t need to know the details, you just need their agreement that they will be available.

You cannot ask how old someone is, nor should you ask them for the dates of their high school graduation. You can ask if they are over the age of 18. When you are talking with a mature job applicant, do not ask them when they plan to retire, as you’re heading into age discrimination for sure. You are safe, however, if you ask all applicants about their long-term career plans.

Sometimes, questions about families are used as ice breakers during interviews. This can be very dangerous, as it quickly gets companies into illegal territory. Comments about interesting last names (Tappero, that’s Italian, isn’t it? Are you from Italy?), about children (tell me about your family, do you have little ones?) and about marital status (what does your husband do for a living?) are all forbidden territory. Once you are in possession of information you shouldn’t have, it can become the basis for a claim of discrimination when the candidate doesn’t get the job. Any question that involves a candidate’s race, creed, religion or national origin is forbidden. Marital and parental status is primarily considered an issue of discrimination for women. In fact, we have a law that protects women who are pregnant. If you interview a job candidate who is obviously quite pregnant, you must find a way to not consider that fact in your hiring decision. Stick to questions about candidates’ availability for overtime, short notice, and attendance at their last jobs, if that’s a concern for you. Remember, asking all candidates the same questions on these subjects will help protect you from discrimination claims.

Another forbidden area is anything related to health and disability. Oftentimes, employers want to know that a future employee will not be taking a lot of time off, so they inquire about the employee’s health. They start asking questions about health conditions, number of sick days they took at their last job, if they are considering having more children in the near future, and whether they’ve ever had an on-the-job injury. All of those inquiries are illegal. You can ask if they are able to perform the essential functions of the job, with or without reasonable accommodations. And you can inquire into their reliability on their last job. If your employee will be working in a position where safety is a concern, you can probe their knowledge of, and attitude about, safety practices.

There are some areas of inquiry that are forbidden, as they have been deemed to have a disparate impact on minorities. For instance, unless it’s a requirement of the job, you cannot ask if someone has a car. You can ask if they have reliable transportation, which could be the bus, a bike, or a relative who will drive them. You cannot ask if someone has ever been arrested, and you shouldn’t conduct blanket inquiries into any and all convictions of all types over the course of someone’s life. You can inquire about convictions of certain types, but only when they specifically relate to a job’s duties, and when they have taken place within a reasonably recent period of time. Inquiries about a candidate’s finances are also taboo, unless they specifically relate to the job’s responsibilities. Washington State has passed a law in this regard, and legislation is pending on the federal level, which is likely to pass as well.

The best approach for coming up with good, safe interview questions is to start with a detailed job description, which specifies the essential functions of the job, knowledge, skills and abilities, quality and quantity standards needed to meet the job requirements, the education and work experience required, as well as the physical factors, working conditions, and time that will be spent performing tasks. Specific questions can then be generated to assure that each candidate meets the requirements.

We might like to blame all of these lawyers, legislators, and the litigious world for the complexities of the interview process. But when we choose to ignore the rules of the game, the words of Theodore Roosevelt come to mind, “If you could kick the person in the pants responsible for most of your trouble, you wouldn’t sit for a month.”

(Editor’s Note: Julie Tappero is the President and owner of West Sound Workforce, a professional staffing and recruiting company based in Poulsbo and Gig Harbor. She can be reached at julie [at] westsoundworkforce [dot] com. View her LinkedIn profile at www.linkedin.com/in/jtappero. The recommendations and opinions provided are based on general human resource management fundamentals, practices and principles, and are not legal opinions, advice, or guaranteed outcomes. Consult with your legal counsel when addressing legal concerns related to human resource issues and legal contracts.)

 
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