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It's much easier to break laws against hiring discrimination than most people realize. Many commonly asked behavioral job interview questions are illegal.
You must be absolutely certain no aspect of your hiring procedures discriminates on the basis of race, sex, age, disabilities, religion, or national origin. All stated job requirements must directly relate to job performance.
No behavioral job interview questions may be asked about marital status, children, or plans for raising a family because this puts women at a disadvantage.
No question regarding age can be asked other than if they're eighteen or older. You can't ask when someone was born, or ask questions that could pinpoint their age, such as "How old were you when you graduated from high school?"
National Origins
It's discriminatory to ask any questions from which national origin can be discerned, such as how an applicant acquired the ability to read, write or speak a foreign language. You can ask if they are a United States Citizen.
The list of subjects forbidden to discuss in a behavioral hiring interview varies from state to state. In California, with a few exceptions, it's illegal to ask the applicant's height, weight, or the name and address of a relative to be notified in case of emergency. No behavioral interview questions may be asked about arrest records, military records or credit rating.
Ignorance of the law is no defense. Over seventy percent of discrimination complaints result from the interview process.
After knowing the law and avoiding any questions that could lead to a lawsuit, your primary defense against discrimination claims are the notes you take during your interview. While many managers resist taking notes on the grounds it inhibits the spontaneous flow of information, notes are critically important in defending your actions should the interview result in a lawsuit. In the new legal climate that exists around hiring, notes are essential.
Stop Applicant on Illegal Subjects
If an applicant volunteers information during the interview on any of these subjects that are illegal to ask, tell them "I don't really need to know this information to judge your qualifications." Thank them for their openness, then direct the conversation to another topic. Indicate in your notes that this information was volunteered, and you attempted to stop the discussion of this subject in the interview.
The general rule is: Only ask for information directly related to their competence to perform the job they're seeking.
Americans with Disabilities Act
The Americans with Disabilities Act prohibits discrimination against people with mental or physical impairments. This isn't just people in wheelchairs. Forty-three million Americans - or about one out of six is considered disabled as defined by this law.
The Americans with Disabilities Act sets new guidelines for qualification standards. It makes your job analysis and written job description more important than ever. The law also changes the type of questions you can legally ask in a behavioral job interview by requiring employers to focus on an applicant's competence, not disabilities.
For example, an applicant may be asked if they can lift a fifty pound sack for a certain number of hours per day if it's an essential job function. However, you cannot ask if an applicant has back problems. Remember: Questions must focus on competence, not disabilities.
Essential and Preferential Job Functions
The law requires employers to distinguish between functions that are essential and are considered a business necessity, and those that are preferential. Hiring criteria must directly relate to the essential functions of the job.
For example, a clerk hired primarily to type and file in the office could not be disqualified in the selection process because they lacked a driver's license to run occasional errands. Unless the errands were defined as an essential function in a written job description before the opening was made public - and is provable as such - it would not fall into the category of an essential business necessity.
Employers can test physical abilities, such as the ability to lift a fifty pound sack for a warehouse job. But only if this test is of an essential job function and is uniformly applied to all applicants.
You may not ask questions in the job interview about disabilities, illnesses, absenteeism, or workers compensation history. It's illegal to ask questions about any illness such as Epilepsy or Aids - as well as questions about hospitalization, the taking of prescription drugs, or if they've ever been treated for stress.
Alcohol and Drug Use
No questions may be asked about past treatment for alcoholism or illegal drug use. Alcohol or drug abuse itself is considered to have been an impairment. Current use of illegal drugs or alcoholism is not protected by the law as a disability. The important distinction to remember is between past treatment, which you may not inquire about, and current abuse, which you may.
The basic rule is: Only ask behavioral job interview questions related to an applicant's competence, not disability.
Reasonable Accommodation
If a job candidate cannot perform the essential functions of a job outright, the employer must ask whether a "reasonable accommodation" would enable the candidate to carry out the task. A "reasonable accommodation" means removing unnecessary barriers to employment, such as a ramp to get around stairs in a work area. To be reasonable, it must not cause "undue hardship" for the employer, or require "significant difficulty or expense" to an employer's operations.
Promises Made in the Job Interview May be Legally Binding
Another legal area that's very important to understand and appreciate is any offer or promise made in the interview to get the candidate to take the job. If they accept and you don't deliver, you can be sued for what you promised - and much, much more.
Disclaimer
This article was prepared to give accurate information regarding legal behavioral job interview questions and practices. However, it is not intended to render any professional legal service or advice.
Federal statutes and regulations are subject to frequent revision by amendment and judicial decisions.
If you have any questions regarding the legality of your own hiring practices, be sure to consult with your Human Resources Department or a qualified attorney.
