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Illegal Questions During an Interview, Does your Staff Know Better?

Posted by admin on March 19, 2015

How many employees does a job applicant meet during your interview process? Do all of them know what interview questions are illegal? Do they understand that asking some questions could land themselves and the company in court?

Interview ProcessQuite often a job applicants meet several employees during the course of the interview process. For some positions a candidate might meet eight or ten – or more. Just because your employees are experienced in interviewing doesn’t mean they have full knowledge of what questions they can ask – and what questions are considered illegal.

In this article we’ll review 8 common interview questions and why every employee who interviews a job applicant should be aware of them - and avoid them.

Interviews are a critical part of the hiring process. It’s the opportunity to meet face-to-face with your applicants to learn more about them and associate a real person with what the employer already knows about them based on their completed application and/or resume.

Job applicants often meet with more than one person during the interview process. Some organizations have applicants for certain roles who interview with upwards of 8-10 employees. With every interview conducted by your employees the risk of asking an illegal question goes up. And up.

To avoid asking questions that can bring legal action against your company you need to know what those questions are – and take steps to ensure your interview team knows them as well.

Here are examples of illegal questions that are often asked during the interview process:

Have you ever been arrested?
Employers cannot ask about applicant arrest records. However, you can ask if an applicant has been convicted of a crime. And the time to ask that question is early in the interview process. However, if you are asking an applicant that question during their first interview? You must ask the question of all applicants during the first interview. All applicants must be treated the same.

Are you married?
This question is illegal because the interviewer could make judgments about the applicant with regard to how much time they could put into the job. The question could also reveal the applicant’s sexual orientation. In addition, a younger married person might be perceived as wanting to have children in the future – a situation the employer might consider (illegally) in the hiring decision believing events such maternity leave could arise in the future.

Do you have children?
This question can come up during the interview process quite innocently. It can be part of a casual conversation where the interviewer is asking the question for no other reason than to get to know the applicant better. However, even in casual conversation during the interview, the question is illegal.

Why? The employer may make judgments about the applicant’s time commitment and availability to the job and the company. However, employers are allowed to ask if the applicant has other outside time commitments that could conflict with their work schedule.

What country are you from?
Employers can ask if an applicant is authorized to work in this country. If an applicant has an accent any questions about where they are from involves asking their national origin. Again, the question is illegal.

Do you have outstanding debt?
As an employer, you have the right to know about an applicant’s credit history – but you need permission of the applicant first. As with criminal background checks, you cannot disqualify a candidate over their financial history unless it directly affects the applicant’s ability to perform the duties of the job they are applying for.

Do you drink?
Employers cannot ask about drinking habits or prescription drug use. For example, if an applicant is in recovery from substance abuse potential employers must realize the Americans Disability Act protects gathering and using this information when making hiring decisions.

How many years have you been working?
By asking this question an applicant’s age may be revealed or cause the interviewer to guess the applicant’s age, both of which are illegal. Interviewers would also be in violation of the law by asking questions about when the applicant graduated from high school or college.

An employer is allowed to ask how long an applicant has been working in a specific industry.

What religious holidays do you practice?
This question might be asked to determine how much time, if any, the employee could request to meet the demands of their religious beliefs. These lifestyle questions are illegal.

Remember, just because someone has conducted a lot of interviews doesn’t mean they aren’t asking illegal questions. Take steps to educate every employee who conducts an interview about what questions they can and can’t ask.
Staying compliant in your hiring practices is not easy. One mistake could cost your company thousands to millions of dollars in fines. 

When was the last time you reviewed every aspect of your hiring process for efficiency, effectiveness and compliance? If you haven’t done it at all or haven’t had an analysis recently let do it for you. And by the way, we'll do it free.

Avoid the pitfalls and costly penalties of hiring compliance mistakes.  Did you find this information helpful?

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Topics: HR Compliance, hiring process, interview process

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