Most illegal interview questions are asked in true ignorance of the law, ignorance of what is proper and how the information could be used by others in a discriminatory way.
The taboo areas to be aware of are:
Questions related to birthplace, nationality, ancestry, or descent of the applicant, their spouse or parents are deemed discriminatory. Residence is acceptable. Languages spoken are permissible if it relates directly to the position. Ask about relatives only in the context of who to contact in case of emergency.
Questions related to sex, marital status, pregnancy, birth control or childcare are not allowable. Questions regarding sexual preference should be carefully avoided. There is no federal law that prohibits employment discrimination against homosexuals but check state and local laws to avoid any problems.
Questions related to race or color should not be asked unless required by law for record keeping purposes. Photographs of a candidate are inappropriate and can be deemed discriminatory.
Questions regarding age are permissible but not a good idea because age discrimination can later be alleged. The Age Discrimination and Employment Act prohibits discrimination on the basis of age against anyone over age 40.
Questions related to creed or religion, church membership or affiliation or religious holidays observed are a no-no.
Questions related to physical disabilities or handicaps should be avoided. Inquiries regarding health of the applicant are prohibited until a conditional offer of employment has been made.
Questions regarding citizenship should be limited to whether the person is a citizen and has the legal right to permanently reside in the US and work here.
Questions regarding an arrest record should only be asked if it is relevant to the specific position.
What are the liabilities?
There is a difference between criminal and civil liability. For there to be criminal liability, it requires establishing a motive or intent. Most questions are asked in ignorance, not intending malice and while not criminally liable, could be subject to a civil lawsuit.
What is the proper candidate response?
Any attempt by the candidate to “assert their constitutional rights” will merely put an end to any mutual consideration. So, answer in brief and move on to the next topic or ignore the question and redirect the discussion. Best to move on to other things, however, if you see it as blatant and offensive, you have every right to terminate the interview and walk out.
Sample questions that may be asked:
- Is there anything that would prevent you from relocating? Or making this move?
- Do you have the legal right to remain permanently in the US?
- Do you require any special accommodations for a face-to-face interview?
- Is there anything that would prevent you from working on a daily basis, working overtime or prevent you from traveling?
- Are there any other names under which your employment can be verified?
- Can you and are you willing to lift “x” number of pounds?
Sample questions that may not be asked:
- How close to retirement are you?
- What religious holidays do you observe?
- Do you plan to marry? Have children? Who will take care of the children?
- What is the nationality of your parents or spouse?
- How did you learn to speak a foreign language?
- What clubs are you a member of?
- What parish do you belong to?
Any questions asked should be uniformly applied to all candidates or not at all. The key question regarding discrimination is whether the information you are seeking bears any relationship to their ability to do the job and is a condition of employment or a bona fide occupational qualification.
Understanding the legal issues associated with discrimination is critical to the hiring process. If you are working with a recruiter, make sure that they have received their CPC certification from NAPS which validates that they have been trained on the laws of discrimination and how to avoid liability issues.
Bob Harrington Associates has been in the executive search business for 20 years and can help you find the best people for your business.