The employee interview process is a critical component of building and shaping school culture. Not only is it a chance to learn more about candidates to your school and to determine their fit for a particular role, but it is also an opportunity to introduce your school, including its mission and vision, to the candidate. The goal of the process is to find the right match between a candidate and a school; 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 school. Similarly, schools should endeavor to avoid legal claims that could result from inappropriate, or even illegal, questions asked during an interview.
To best establish a lawful, engaging, and effective hiring process, schools should consider incorporating a number of straightforward tips and should be cautious of asking interview questions that could create legal exposure to the school. This article addresses both areas in turn below.
Tips for an Effective Hiring Process
Establish a Consistent Process
Schools should ensure they have a standard, consistent process for interviewing candidates. Doing so helps schools adequately compare different candidates while also mitigating potential legal exposure that can arise when treating various candidates differently. To meet this goal, schools should consider drafting a standard set of interview questions, which should be vetted through human resources and legal counsel (see further below regarding ill-advised, and potentially illegal, questions to ask during an interview).
Creating and Utilizing a Hiring Committee
Similar to crafting a consistent hiring process, schools can greatly benefit from having a unified team involved in vetting and hiring candidates. Members of a hiring committee might include the department chair, member of administration, human resource professional, and one or more faculty member. Who the school decides to be on the committee is up to the school, but having a committee or team can help to bring in a more complete understanding of the needs of the school and the essential functions of an open position.
If possible, candidates should be interviewed by a hiring committee as a whole. Alternatively, individual committee members should interview all candidates for an open position, so that the committee member can adequately compare the various options. Further, each member of a hiring committee could adopt a different focus of a candidate’s background or interest in the school, and then be responsible for asking questions and eliciting information relating to that focus.
Incorporating Behavioral Standards
The interview process is also a crucial opportunity to probe an applicants’ behavioral fitness for a position, not just their job skills. As a starting point, many schools can benefit from having a concise, non-controversial set of behavioral standards for employees relating to their interactions with students and each other. The standards should cover the key behavioral dynamics that contribute to the healthy development of students and, conversely, to dysfunctional adult-student relationships—these dynamics tend to revolve around issues of boundaries, roles, power, and accountability.
Having such a list enables the school to reference the standards throughout the hiring process, including during any interviews. For example, if your school has a standard regarding maintaining appropriate boundaries with students, an applicant could be asked to discuss situations in which setting boundaries was a challenge. Even if your school does not have an established set of behavioral standards, you could still ask candidates about their awareness of issues involving boundaries, roles, and power dynamics—applicants could also be asked how they would handle such issues, which provides insight into an applicant’s accountability.
Be Mindful of Red Flags
One way a school could expose itself to a legal claim is through a substandard, non-comprehensive hiring process. To mitigate against this risk, the school should receive as complete information as possible about a candidate, and then vet the candidate through a comprehensive interview. For example, is there a gap on the candidate’s employment resume? Or did the candidate leave a prior school employer midyear? Has the candidate moved through various prior employers in a short period of time? Or has the candidate only put forth non-supervisory references? If the answer to any of those, or similar, questions is “yes,” then the interview is the perfect opportunity for a school to probe the candidate’s explanation and fitness for the position. Schools that fail to do so could expose themselves to a potential negligent hiring claims should that candidate be hired and subsequently cause harm on campus.
The interview process should be viewed as a two-way street—while a school should be asking thoughtful, critical questions of a candidate, the school should provide the candidate an opportunity to ask questions about the school or job position and be prepared to answer any questions a candidate may have. Having multiple stakeholders from the school involved in an interview—or a series of interviews—helps ensure a candidate forms the most complete understanding of the position and the school. Should a candidate not be prepared with questions, it can be a telling sign that the candidate has a lack of interest in the school and may not be the right fit.
Questions to Avoid and Why
Schools must strive for successful, unbiased interviewing. The specific questions one asks during a job interview—and the way the questions are phrased—are critical to eliciting the right information from a candidate without unnecessarily creating legal exposure to your school. Permissible questions are ones that are tailored to the specific job and not based on a characteristic or category protected under state or federal law.
There are several topics of interview questions that could form the basis of a discrimination claim—it is crucial to understand those topics, why they create exposure, and whether, or how best, to rephrase relevant questions. Below is a list of examples of questions that are illegal to ask, as well as potential ways the questions could be rephrased (if any):
- Race, color, citizenship, or ethnicity
- Examples: “Where are your parents from?”; “Are you a U.S. citizen?”; or “What languages do you speak at home?”
- Schools should avoid any questions that could elicit any information about these topics, with the exception that it is permissible to ask, “Are you lawfully employable in the United States?”
- Examples: “What church do you attend?”
- While, as a general matter, schools should avoid any interview questions relating to religion, religious schools have more latitude under applicable laws to seek information relating to a candidate’s religious practices. Such institutions should consult with legal counsel regarding the parameters of such 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?”’
- Schools should avoid any questions that could elicit any 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?”; “Have you or any close relatives ever had a heart attack or been diagnosed with a heart condition?”; or “Do mental health conditions such as bipolar disorder, depression, or schizophrenia run in your family?”
- 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 has otherwise disclosed a disability during the application process, it is then 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 a candidate if the candidate can 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 that applicants meet any 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 have any preschool children at home?”; “Do you plan to have children in the future?”; “What is your marital status?”
- Schools should avoid any questions eliciting information about pregnancy, children, or marital status, but may ask more general questions, such as, “Are there specific times that you cannot work?”; or “Do you have responsibilities other than work that will interfere with specific job requirements, such as traveling?”
- Credit Record
- Examples: “Have your wages ever been garnished?”; or “Have you ever declared bankruptcy?”
- Schools should avoid any questions that elicit information about a candidate’s credit history.
- Arrest Records
- Examples: “Have you ever been arrested?”
- Many states have ban-the-box laws that prohibit asking an applicant about a criminal record until some point beyond the initial application or interview. However, many such laws also have carve outs for candidates who may have direct and unmonitored access to children. It is therefore crucial to understand what laws apply to your school. In general, schools could consider more targeted questions relating to past conduct, such as “Have you ever been investigated for, disciplined for, or convicted of abuse, neglect, or assault?”; or “Have you ever had a professional or occupational license or certificate suspended or revoked for such misconduct?”
As schools prepare for a new season of offer letters and hiring, they would be well-served to audit their hiring and interview process. A candidate interview is perhaps the most crucial part of a robust, comprehensive hiring process for an independent school—there is a wealth of opportunity in conducting successful interviews; there is also straightforward ways to avoid potential legal claims.
McLane Middleton’s Education Practice Group will be hosting a free webinar on updating and implementing employment agreements on Tuesday, January 24th from 1:00 pm – 2:00 pm ET. We encourage you and your team to attend to learn more about this topic. Should you have any questions about the legal implications of an interview or need assistance with updating your hiring practices and documentation, please reach out to our team of trusted education attorneys.