Interviewing Applicants? What Employers Can’t Ask in Interviews

by Obermayer Rebmann Maxwell & Hippel LLP
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If you are the interviewer, there actually is such a thing as a stupid (and perhaps unlawful) question in an interview. The key to developing appropriate interview questions that are both useful in obtaining relevant information and also legal is to train those involved in the interview process. Participants in the interview process, regardless of whether they are decisionmakers, should fully understand what information should not be solicited during telephone screens or interviews of applicants. Even the most cautious employers, however, may face litigation from a disgruntled applicant who believes that he or she was treated unfairly in the hiring process. Recognizing these potential legal pitfalls and training those involved in the interview process is the best way to avoid asking the wrong question during an interview.

Some examples of questions to avoid are set forth in the table below, alongside the appropriate question that solicits acceptable and relevant information about the candidate’s ability to perform job functions:

Characteristic

Avoid

Acceptable

Marital Status

Are you married?

Is this your maiden name?

Do you prefer Mrs. or Ms.?

Have you gone by any other name?

Residence

Do you own your residence or do you rent?

What is your current address?

Education

When did you graduate college?

What school did you attend?

What did you study?

What degree did you earn?

Age

How old are you?

What is your birth date?

When did you graduate high school?

If hired, can you demonstrate proof of age?

National Origin

Where were you born?

What nationality are you?

What language do you speak at home?

Are you legally authorized to work in the United States?

Gender/Caregiver Responsibilities

Do you have children?

Do you plan to have children?

Do you have any caregiver responsibilities?

What child care arrangements do you have?

Are you willing to travel?

Can you work weekends?

Can you work overtime?

Disability

Have you taken a leave of absence from your prior employer?

Do you have any illnesses or conditions that interfere with your ability to work?

Did you ever use Family Medical Leave Act (“FMLA”) leave?

Have you ever received workers’compensation benefits?

Can you lift 25 pounds?

Religion

Does your religion prevent you from working on weekends or holidays?

Are you willing to work weekends?

Are you able to work third shift?

Arrest or Conviction Records

Have you ever been arrested?

Have you been convicted of a felony?

(This question cannot be asked during the initial interview in a city or state with Ban the Box legislation (i.e., Philadelphia))

Organizations/Activities

Are you a member of a church?

To which political party do you belong?

Are you a member of any professional organizations related to your job?

Military

Were you dishonorably discharged from the military?

Explain how your military service will enhance your ability to do the job.

What happens if the applicant offers impermissible information during the interview?

If the applicant offers information that the employer should not consider, the interviewer is advised to redirect the discussion to job-related information rather than inquire further into the topic. For example, if an applicant responds to information regarding hours of employment by saying he has to pick up his child from day care, the interviewer should reframe the question to ask if the applicant will be able to work the hours required by the position rather than asking questions about the applicant’s childcare responsibilities, marital status, etc.

What records should be maintained from the interview process?

Maintaining documentation from the interview is important especially if the employer declines the candidate based upon the interview. Interviewers should be encouraged to write down key words or ideas during the interview that are objective and job-related. Interviewers should forward all notes regarding a candidate to the designated point person. This includes any email communications about the candidate or employment decision. The human resources department should also maintain all applicant tracking and other information. Notes from all reference checks (including the date, time, and identity of the reference) should be retained with the entire application package.

As a best practice, all materials used as part of the interview process should be maintained for a period of at least one year from the date of the personnel decision of the applicant (or, in the case of an employee, at least one year from the date of termination). This retention period may be longer if the employer has affirmative action obligations or is required by regulatory agencies to maintain records for a longer period of time.

*Adapted from Tiffani L. McDonough, Esq., Interviewing and Hiring, in Pennsylvania Employment Law Deskbook (forthcoming Pennsylvania Bar Institute 2nd ed. 2014).  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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