“What Can’t I Ask When I Interview And Hire An Employee?”		«BACK
	by C. John Jossart
	from Krass Monroe, PA

Hiring new employees can be a daunting task for any size business.  Some employers invest significant time and resources to secure the ideal candidate while others opt for a more streamlined approach to hiring.  Regardless of your company’s preferred style, the law restricts the type and scope of information you can obtain from a candidate applying for a job.  You may wonder why there are limitations imposed upon the hiring process.  The answer is that Federal and State government have enacted remedial legislation to protect certain groups of individuals who have historically been subjected to adverse and unfair employment practices.  This article is an overview of the types of questions and areas of inquiry your business should avoid during the interview and hiring process.  These prohibitions apply to the entire hiring continuum, from the initial job advertisement to eventual offer of employment.

Age or birth date.  Avoid questions that directly or indirectly reveal a prospective employee’s age, except to verify that the individual is old enough to work.  “When did you graduate from high school?” may appear like an innocuous question, but the answer still reveals the applicant’s age. 

Disability.  Both state and federal law prohibit discrimination based upon an actual or perceived disability.  The prudent employer will avoid questions about an individual’s medical history, including prior workers’ compensation claims or job injuries.   An employer may not inquire about an applicant’s mental or physical disability but may ask the applicant to describe or demonstrate that he/she is physically able to perform specific functions associated with the job.  However, remember to ask the same question to each prospective hire.  Although an employer may not ask about the cause, severity or prognosis of an actual or perceived disability during an interview, it may condition a job offer upon the satisfactory results of a medical examination.  Note that the employer may only use the results of the medical exam to withdraw an employment offer if the applicant cannot perform the essential functions of the job with or without reasonable accommodation. 

National origin and citizenship.  Refrain from asking the individual about national origin and citizenship; i.e., ethnic background, birthplace, ancestry, etc.  A common trap for the unwary interviewer is to ask an applicant about “an unusual name” or to make a stray remark such as “that’s an interesting accent – where are you from?”  These types of seemingly innocent bits of small talk may expose the employer to liability for illegal discrimination in the hiring process.

Race/Color.  Avoid discussing the topic of race or color during the hiring process.  This includes comments about the interviewer’s race, the applicant's race and the demographics of the company’s work force.     

Gender.  Never inquire or comment about an applicant’s gender or ask gender-specific questions such as whether a female applicant would have difficulty working for a male supervisor.  The employer may help avoid this pitfall by asking the same questions to both male and female candidates. 

Marital Status.  Do not ask about marital status such as whether the applicant is single, married, remarried, divorced, widowed, etc.  Commonly, the applicant will volunteer this information when you ask them to “tell me about yourself.”  The interviewer should decline any follow up questions in this area and simply move on to the next interview topic.

Pregnancy and Childbirth.  Never ask a female applicant whether she is pregnant, plans to have a family or would like more children.  Employers should also avoid asking about child care arrangements.   

Religion.  Employers may not ask questions about an applicant’s religion unless it is directly involved with the job opening.  Indeed, even a question as seemingly benign as “what church do you attend?” is improper.  An effective way to avoid this problem is to state the hours of the job and inquire if the applicant has any problems with the work schedule.  This type of approach may add important information to the employer’s decision-making process without violating the law. 

Physical characteristics.  Do not ask an applicant to disclose eye color, hair color or complexion on an employment application.  Doing so may be construed as a back door attempt to discover an applicant’s race, color, national origin, citizenship, etc. 

Sexual orientation.  This category speaks for itself. 

Status regarding public assistance.  This means do not ask whether the applicant has applied for or is receiving federal or state assistance, such as food stamps or subsidized housing.  Also included under this category is whether the applicant rents or owns a home.

Arrests and convictions.  Interviewers should avoid asking about arrests and convictions.  If the employer is legitimately concerned about an applicant’s criminal history, it may conduct a criminal background check.  A word of caution:  some courts have determined that basing an employment decision primarily or exclusively upon an individual’s criminal record creates a disproportionate and unlawful impact on particular classes of people protected under federal and state law.  

Another suggestion to help insulate your business from legal exposure during the hiring process is to ask all applicants the same questions.  Following a prepared outline of questions will help ensure uniformity in questioning and will guard against the perception that some applicants are being treated differently or unfairly.  However, the interviewer should refrain from writing thoughts and comments unrelated to the job on the interviewing outline (or the applicant’s resume) and would be wise to retain copies of all applications, resumes and job advertisements.     

Although implementing good interviewing practices will not necessarily prevent all legal action against your business, it will decrease the probability of a lawsuit and will assist you in defending against any that may arise.