The employee interview process is a critical component of building and shaping workplace culture. Not only is it a chance to learn more about candidates and to determine their fit for a particular role, but it is also an opportunity to introduce your organization to the candidate.
The goal of the process is to find the right match; hiring the right employee will help fill a critical position while also helping to ensure a long-term, collaborative relationship between that employee and the organization. Similarly, employers should endeavor to avoid legal claims that could result from inappropriate, or even illegal, questions asked during an interview. To establish a lawful, effective hiring process, employers can follow a few simple tips.
First, it is important to have a consistent process for interviewing candidates. This helps organizations compare candidates fairly and avoid legal exposure by treating candidates differently. To aid in creating a consistent process, employers can utilize a hiring committee or team to review candidates. Having multiple stakeholders involved in the interview process can provide a more complete understanding of the organization’s needs and the essential functions of an open position.
If possible, all candidates should be interviewed by the full committee, or individual committee members should interview all candidates so they can compare the options. Each member of the committee could also focus on a particular aspect of the candidate’s background or interest in the organization and be responsible for asking related questions.
Further, the committee can prepare standard interview questions vetted by human resources and legal counsel. The specific questions asked during a job interview – and the way the questions are phrased – are also critical to eliciting the right information from a candidate without creating legal exposure to the organization. Permissible questions are tailored to the specific job and not based on a characteristic or category protected under state or federal law. Below are examples of questions that are illegal to ask, as well as potential ways the questions could be rephrased:
Race, color, citizenship or ethnicity
- Examples: “Where are your parents from?” or “What languages do you speak at home?”
- Employers should avoid questions regarding these topics, with the exception of, “Are you lawfully employable in the U.S.?”
- Examples: “What church do you attend?”
- While employers should avoid questions relating to religion, religious organizations have more latitude under applicable laws to seek information regarding a candidate’s religious practices. Such institutions should consult with legal counsel regarding questions when preparing for an interview.
Gender, sexual orientation or gender identity
- Examples: “Do you wish to be addressed as Mr./Mrs./Ms.?” or “Do you have a husband/wife?”’
- Employers should avoid questions that could elicit information about these topics.
Disability, health issues or genetic information
- Examples: “Are you currently taking any medications?”; “Have you ever filed any workers’ compensation claims?”; or “Have you or any close relatives ever had a heart attack or been diagnosed with a heart condition?”
- However, it is permissible to ask an applicant to voluntarily report if the applicant has a disability. If an applicant has an obvious disability or disclosed a disability during the application process, it is permissible to ask if the applicant will need a reasonable accommodation during the application process or on the job. Further, it is permissible to ask, “Can you perform the essential functions of the specific job?”
- Example: “How old are you?” or “When did you graduate high school?”
- However, it is permissible to ask questions that verify applicants meet age-related legal requirements for the job, such as, “Are you older than 18?” or “Have you received a high school/college degree?”
Pregnancy or other family-related questions
- Examples: “Do you plan to have children in the future?”; “What is your marital status?”
- Employers should avoid questions eliciting information about pregnancy, children or marital status but may ask general questions, such as, “Are there specific times that you cannot work?” or “Do you have responsibilities that will interfere with specific job requirements, such as traveling?”
Finally, the interview process should also be viewed as a two-way street – in addition to asking thoughtful questions of a candidate, employers should provide the candidate an opportunity to ask about the organization or position and be prepared to answer questions a candidate may have. Should a candidate not be prepared with questions, it can be a telling sign that the candidate has a lack of interest in the organization and may not be the right fit.