From a legal compliance standpoint, interviewing and screening applicants is a time of high risk for your company. Most employers know that it is illegal to discriminate against a candidate in the hiring process based on nationality, religion, age, marital or family status, gender, health and physical ability, military status and, in some locations, sexual identity and criminal background. What they don’t realize is that many seemingly-benign questions, either on the employment application or in the interview, can lead a candidate (or court of law) to conclude that you are doing just that – discriminating against a protected class.
Employment Application
We recommend that you require candidates to fill out a formal, written employment application because you can use that to have the applicant attest that all information he or she provides is correct – whereas simply collecting a resume does not afford you that opportunity. On the application, its best to keep it simple and ask only those questions that are absolutely necessary. For example, yes, you’ll need to know how to contact the employee, but you don’t need to know whether the applicant rents or own his own house. And, indeed, that type of question can be construed to show you discriminating against a protected class.
First, let’s review what should be on your employment application. It should:
Include an EEO statement up front stating that your company conforms to local, state and federal laws and does not discriminate.
Ask for name, address and contact information.
Ask specifically if applicant is a citizen or legally authorized to work in the US and notify the applicant that documentation will be required if hired.
Ask if the applicant is able to perform essential functions of the job.
Ask for a list of past employers and provide a check box if employer can be contacted.
Ask the applicant to list education with degrees earned a yes/no to graduation. Do not ask for dates.
Not ask any criminal background questions. These you can ask later in the process or once the applicant is offered a position.
Ask for references, preferably professional.
Have an employment-at-will statement.
Require all applicants to sign that all information is true and accurate so that you can hold them accountable for any false information provided.
Before you go beyond these categories, look critically at whether the information truly belongs on the application or could instead be obtained at a later stage in the hiring process. Deferring whatever information you can to that later stage can help you avoid charges of discrimination by unsuccessful applicants.
Employment Interview
Next comes the interview. There are many questions that are illegal to ask in an interview. That said, there are some reasonable alternatives.
What not to ask
Acceptable Alternatives
Age
How old are you?
How much longer do you plan to work before you retire?
What is the date of your high school graduation?
Are you over 18 years of age?
What are your long term career goals?
What schools did you graduate from and what degree did you earn?
Nationality
When or where were you, your parents, your spouse born?
What is your original or maiden name?
What is your lineage, ancestry or national origin?
Are you legal to work in the United States? (Do not require documentation until post-hire)
What languages are you fluent to speak/read/write in?
Religion
What is your religion or religious practices?
What holidays do you observe?
What days are you available to work?
Are there any days you cannot work?
Are you able to work our required schedule?
Race
What is your race or ethnic background?
Do you have a problem working with co-workers of a different race?
Do you anticipate having any difficulty working with others or performing the duties of the job?
Health & Disability
Do you smoke, drink, take drugs?
Are you in good health?
Do you have any disabilities?
Are you able to perform the physical duties of the job with or without reasonable accommodation?
Gender
What is your marital status?
Do you have or intend to have children?
What’s your gender or sexual identity?
How do you feel about managing a man/woman?
Are you able to work the required schedule for the job?
Are you able to perform the duties of the job?
Military Status
Are you still in active or reserve status?
What were the dates of your service?
Were you honorably discharged?
Are you receiving a disability pension?
Are you a military veteran?
What military skills and experience are you able to bring to this position?
Criminal Background
Have you ever been arrested?
Have you been convicted of a crime?
Have you served time for a crime?
The job requires a security clearance – do you anticipate any problems obtaining a clearance?
Financial
Have you ever filed for bankruptcy?
Do you own your own home?
Do you own your own car?
What is your credit rating?
What is your social security number?
Do you have access to reliable transportation?
Do you anticipate being able to arrive at work on time?
Affiliations
What clubs do you belong to?
Do you belong to a labor union?
What do you think about unions?
Are you a member of any organizations that could be beneficial to your work in our industry?
Beyond these tricky areas of inquiry, there are many creative, insightful questions you should consider during an interview. And, whenever possible, we encourage you to ask them in a “behavioral interview” format, which is simply posing the question in the following format: “Tell me about a time when (question).” This will reveal the most detail about the candidates past experiences, which are always the best indication of future behavior.
Criminal Background Check
You will want to run a criminal background check on your candidate, but given the myriad of “ban the box” laws out there on the state and local level, it’s best to run the check – which will require a social security number, date of birth, maiden name and other personal information – once you have decided to hire the individual, and not before. We recommend that you extend an employment offer that is contingent upon a clean criminal background check. And if you thinking about running a credit check, think again – federal law prohibits employers from running a credit check except in certain instances.
Of course, you will need to collect birth date, social security numbers, marital status and dependent information for payroll and benefit selections and you will need to review documentation verifying the candidate’s right to work in the United States. But you should collect this information only after the candidate has been hired.
Yes, it’s a challenge – you are trying to learn as much about the candidate as possible, but you don’t want to go wading into areas of inquiry that could be interpreted as discriminatory. Our best advice – plan your process, clean up your application and prepare your questions in advance.
By Claudia St. John, SPHR, President Affinity HR Group
