Job interviews are a fact of life for employers. They are also minefields, full of potential violations of Equal Employment Opportunity (EEOC) laws that protect job candidates and employees from discrimination. Some interview questions and topics obviously are discriminatory — How old are you? Do you plan to have children? — and employers know to stay away from them. But in the course of creating a friendly, relaxed interview, you may unintentionally veer into areas that are illegal to discuss.
The key thing to remember is to keep interview questions focused on the job, with questions that reveal whether the applicant has the experience, skill, and temperament to do the job. The EEOC prohibits questions about age, disability, race or ethnicity, sexual identity or orientation, religion, national origin, marital status, children, pregnancy, and, in a recent change, salary history. To protect your company, avoid these five general topics:
Age, gender, and physical attributes
An applicant’s physical characteristics rarely affect job performance. While some jobs may require a certain level of dexterity or strength for heavy lifting, take care to focus on those job demands and limit your inquiry to whether the applicant is able to meet them. Be very aware of how questions could be perceived as bias. Asking when the candidate graduated, for example, can be seen as a way to determine age. Also avoid implications that the applicant’s age or gender might keep them from fitting in with current employees in other demographic groups.
Marital status and family
Avoid questions in this category completely. Hiring decision cannot be based on whether a person is married or has/plans to have children. Such questions can also be interpreted as attempts to ascertain sexual orientation/identity, which have no bearing on job qualifications.
Race and religion
Title VII of the Civil Rights act of 1964 prohibits companies from discriminating on the basis of race, color, religion, sex, and national origin. While a definition of “race” is not part of Title VII, racial discrimination includes physical features and skin colors that are associated with certain races. Asking about the need to take religious holidays off or the origin of an unusual name infer bias. Employers do have to verify an employee’s authorization to work in the U.S., but only after hiring.
Medical history and disability
Your company may ask for a physical exam after a job offer, but pre-employment questions related to a disability or medical condition are prohibited. If the applicant voluntarily discloses a disability, you are free to ask limited questions about reasonable accommodations. But stay away from leading questions that are not related to the specific function of the job.
Exception: Bona fide occupational qualification (BFOQ)
In rare cases, the nature of the job requires candidates with characteristics that are otherwise prohibited. For example, if you work for a church looking for a new clergy member who needs to be a member of the denomination, religion is a valid topic of discussion. Age is relevant for jobs that have a mandatory retirement age, like pilots. However, to use the BFOQ exception, the employer must prove that job applicants without the characteristic are unable to do the job. Courts only allow very narrow exceptions — and no exception exists for race. Tread cautiously, because what makes sense to you might not be a bona fide exception and result in a discrimination lawsuit.
Using a list of prepared questions help ensure that the topics stay on track and that you cover essential points without veering into troublesome areas. Use the same format for every applicant for the job. For good measure, check with your employment attorney to be certain you stay within the law. As always, we are happy to help.