How can an employer avoid asking questions that may be unlawful and lead to a failure to hire claim?

Specific interview questions are ill-advised.  Others are downright illegal.  Questions that elicit information about protected categories that shouldn’t be relevant to the selection process fall under the ill-advised category.  Many of these questions are innocent enough but can cause problems when asked of a litigious applicant.  Examples:

  • What year did you graduate from high school?   It is illegal to discriminate against someone over 40.  As such, it’s best to avoid questions that force an applicant to divulge their age. 
  • Your last name is interesting.  Is that French/Irish/Hispanic/etc.?
  • Do you have young children?  What is your childcare arrangement (to a female applicant)?

The Americans with Disabilities Act makes it per se illegal to make “disability related inquiries” to applicants.  This means employers cannot ask applicants questions likely to elicit information about a disability.  At the interview stage, an employer cannot ask questions such as:

  • Have you ever had back surgery?
  • Are you on any medications?
  • Are you under a doctor’s care for any condition?
  • Have you ever been given any physical restrictions by a doctor?

It may seem hard to believe that asking the wrong questions in an interview could cost an employer hundreds of thousands of dollars, but it happens.  Here are some suggestions you may choose to implement to make sure it doesn’t happen to your business:

  1. Questions should be related to the applicant’s ability to perform the job in question. Always be able to articulate a legitimate reason for each question.
  2. Prepare questions in advance. While this may seem like a lot of work, it helps the interviewer follow the first guideline and allows the interviewer to listen to the answers given by the applicant, rather than trying to think of the next question.
  3. Ask all applicants the same questions. This puts all interviewees on a level playing field and provides a more effective “apples to apples” comparison.  Plus, if everyone gets asked the same questions, the questions aren’t discriminatory to any one of the applicants. 
  4. Avoid asking questions about age, citizenship/nationality, family/marital status, religion, and potential disabilities. 

Next Tool Kit Article: Making an Offer >>

<< Drug Testing

Return to Employment Law Tool Kit

The information herein is not legal advice. The information is in the form of legal education and is intended to provide general information about the matter discussed.  The above is not, nor is it intended to be, legal advice and does not create an attorney/client relationship.