Hiring Interview - What Can Employees Ask Applicants?

Fall 2019 Article

Illegal job interview questions solicit information from job candidates that could be used to discriminate against them. Asking questions about personal characteristics that are protected by law, such as race, color, religion, sex, national origin or age, could result in charges of discrimination, investigations by the U.S. Equal Employment Opportunity Commission (“EEOC”) and, eventually, lawsuits if issues cannot be resolved. These types of questions may discourage some individuals from applying, may be viewed suspiciously by some applicants, and may be considered evidence of intent to discriminate by the EEOC. If you do not have this information when you decide who to hire, it may be easier for you to defend your business against a hiring discrimination complaint.

For example, you should avoid:

  • Questions about race, religion or ethnicity, such as:

    • Are you biracial?

    • Which church do you attend?

    • What language(s) do you speak at home?

  • Questions about age, unless used to verify that applicants meet any age-related legal requirements for the job.

  • Questions about an applicant's pregnancy or plans to start a family, such as:

    • Are you pregnant?

    • Do you plan to have children within the next year?

Before a job offer has been made, you cannot ask questions about an applicant’s disability or questions that are likely to reveal whether an applicant has a disability. This is true even if the disability is obvious. You can ask the applicant to describe or demonstrate how he/she would perform specific job tasks, but you can’t ask about his/her disability.

For example, you can't ask an applicant:

  • Do you have a disability?

  • What medications are you currently taking?

  • Have you filed any workers' compensation claims?

However, in certain circumstances, you can ask an applicant, with a disability which is obvious or which the applicant disclosed, if he/she will need a reasonable accommodation during the application process or on the job.

You also cannot ask questions about an applicant’s genetic information, such as the applicant’s family medical history or receipt of genetic tests or genetic counseling. These rules apply to any communications with or about the applicant, including application forms, interviews and reference checks, whether you are seeking information from the applicant or from someone else, such as the applicant’s doctor, former employers, friends or family.

In addition, some hiring practices may have an especially negative effect on applicants of a particular race, color, religion, sex, national origin, age. For example:

  • Requiring that applicants be within a certain height or weight range may have an especially negative effect on female applicants;

  • Requiring that applicants pass a physical agility test may have an especially negative effect on older applicants;

  • Requiring that applicants live within a certain geographic region may have an especially negative effect on applicants of a certain race;

  • Broadly excluding applicants with criminal records may have an especially negative effect on applicants based on race or national origin.

During the course of an interview, candidates may offer information about themselves voluntarily that would answer an illegal interview question. If this happens, do not follow up on the topic, and do not consider it when making your hiring choice.

Finally, ensuring that all employees involved in recruitment and hiring decisions understand their responsibilities may help prevent discrimination. Good practice is to retain applications and any interview notes for at least one year.

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Requests for information or insights on the issue discussed in this article may be addressed to alexander.rossi@vallalaw.com. This article is for information purposes only and does not constitute legal advice. The information contained herein may be outdated or incomplete, and shall in no way be taken as an indication of future results. The transmission of this article is not intended to create, nor does its receipt constitute, an attorney-client relationship between preparer and reader. You should not act on the information contained in this article without first seeking the advice of an attorney.