Guidelines For Legal and Effective Interviewing

Jennifer L. Parent
Director, Litigation Department & Chair Business Litigation Practice Group
Published: Concord Chamber of Commerce Newsletter
October 10, 2018

A vital component in the hiring process is the employment interview.  In order to hire the most qualified applicant, managers and employees who participate in the selection process must be well versed in how to effectively conduct interviews.  They must also be familiar with federal and state laws that preclude certain questions.

Federal and state laws require that companies make employment decisions without regard to protected categories, such as race, age, religion, sex, sexual orientation, national origin, disability, marital status, genetic information, and other categories.  Staying in compliance with these laws will help keep the Company out of court and will strengthen the Company by creating a healthier atmosphere free of the damaging aspects of discrimination or harassment.

A few examples are warranted.  You cannot ask how old someone is in an interview.  Instead, you may ask whether the person is over the age of eighteen.  Even asking when someone graduated from high school elicits someone’s age.  An applicant’s genetic information and questions about family medical history are also not allowable.  Similarly, you cannot ask whether someone is disabled.  Instead, you may ask whether the person can perform the essential functions of the job to which the person is applying.  Questions about family status (whether someone has children or has made childcare arrangements during work hours or the applicant’s marital status) are not job related and should not be asked.

In the hiring process, the goal is to gain as much information from the applicant while respecting federal and state laws.  The guiding principle behind any question to an applicant is whether the interviewer can demonstrate a job‑related necessity for asking the question so make sure the interviewer is familiar with the position requirements.  Below are some suggestions for fostering an atmosphere that is conducive to open discussion:

  1. Ask questions that facilitate discussion. Avoid questions that require a yes or no answer.  Open ended questions allows the prospective employee the opportunity to speak freely.
  2. Ask only job‑related questions.
  3. Listening skills are essential in an interview. It is important to let the applicant speak without being interrupted.
  4. The purpose of the interview is twofold. First, obtain as much information as possible in order to assess whether the applicant will be a good “fit” for the position and the Company.  Second, take the opportunity to sell the Company to the candidate, being persuasive yet realistic.
  5. Avoid discriminatory questions.
  6. Use a consistent interview format.

When done correctly, the hiring process can be a vital tool in a successful hire.  Unfortunately, when handled incorrectly, the hiring process can be costly for employers.  Be prepared and ask what you need to know for that job position.  Helpful guidance is available, such as  Companies should confirm those who participate in the hiring process understand lawful and effective interviewing.