By Stuart Oberman, Esq.,
and Grace Tillman, Esq.
May 31, 2023
People are naturally curious whenever they meet anyone new. For most people, our instinct is to try and develop a bond with this stranger. We try to find common ground. Generally, we do this by asking friendly questions to try and learn information about the new person we have encountered. We may ask questions like “Where did you grow up?”, “When did you graduate?”, “Do you have children?” or “Where is your family from originally?” While these questions are all acceptable in our personal lives, if you are interviewing a prospective new employee, these questions can get you into trouble.
When meeting with a potential candidate for a position in your practice, your goal is to learn as much information as possible to determine if they would be a good fit for a specific position or with the company in general. However, we must exercise extreme care to avoid crossing the line, which could result in our otherwise innocent questions turning into accusations of unfair hiring practices or, worse, a lawsuit by an unsuccessful applicant.
Avoid Questions Unrelated to an Applicant’s Ability to Do the Job
Any question not directly related to an applicant’s ability to do the job, and maybe even some that do, should be avoided. The Equal Employment Opportunity Act (EEOA), as well as other federal, state and local laws, prohibit an employer from asking any question during an interview that could lead to discrimination or the appearance of discrimination. Therefore, questions that directly or indirectly provide an answer that includes information about an individual’s national origin, race, religion, sexual orientation, gender, age, marital status, disability, veteran status, ethnicity or family status should be avoided.
If an applicant has an unusual name, the interviewer should refrain from asking about the name’s origins. If an applicant has a gap in their resume, the interviewer should not ask why. If an applicant appears to be of an age where they may have young children, the interviewer should not ask the applicant if they have or plan to have children. If an applicant mentions that they have children, the interviewer should refrain from asking questions regarding the availability of childcare. If an applicant mentions where they engage in religious worship, the interviewer should refrain from commenting or asking follow-up questions.
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Undoubtedly, legitimate job-related information can be sought in an interview, such as whether a candidate can perform the tasks required for a specific position. Still, caution must be taken to avoid asking impermissible questions. For instance, if the job opening requires a successful employee to lift heavy boxes or engage in a repetitive task, the interviewer may not ask applicants if they have a disability that would prevent them from doing the tasks required for the position. They also could not ask if the applicant had previously ever had a work-related injury from doing a job like the one available. Instead, the interviewer may provide the applicant with the job’s physical requirements and then ask, “With or without an accommodation, are you able to perform the job duties?” as the follow-up question.
Employers can ask straightforwardly if an applicant can work during the hours required for the position or, alternatively, the days and times the applicant would be available for work. They cannot ask how many days an applicant missed in the last year due to illness or other absences. If the job requires an employee to be available to work on a specific day, the applicant can be asked if they are available on that day. If the answer is no, the applicant may not be asked why they are unavailable to work that day.
An interviewer should not ask if the applicant has any outside responsibilities which could interfere with the applicant’s ability to be at work every day on time. The answer to that question for everyone is yes; there will always be something that could, theoretically, keep you from being able to work every day on time. This question appears to be searching for an applicant to admit that they may or may not have a spouse, children or a disability, which could affect their ability to be on time to work every day.
An interviewer can ask where an applicant lives presently, but not where they have lived in the past. If an applicant lives a significant distance from the office, that may be a factor in long-term job satisfaction. Where an applicant used to live has no bearing on the ability to do the job at issue.
Some Questions Are OK, As Long As All Applicants Are Asked
Provided the question is asked of all applicants, an employer may ask if an applicant is legally authorized to work in the U.S. The employer may not single out applicants who look to be “foreign” and ask that question. Applicants should not be asked where they were born or where their parents are from.
If the employer intends to verify the applicant’s education, work history or references, the employer needs to know if the applicant ever went by any other name. Employers may ask an applicant such a question, but it should be asked of all applicants, not just selected candidates.
Similarly, employers may want to know if a job applicant has ever been convicted (not arrested) of a crime. Employers must ask this question uniformly to all applicants, not just those they suspect may be more likely to have a criminal record based upon a discriminatory stereotype.
Train All Interviewing Prospecting New Hires on What to Ask & Not Ask
An employer must ensure that every person present during any interviews conducted on their behalf has been trained to know what questions are permissible during an interview and those which are not acceptable. While some practices may have a lead interviewer qualified in human resource management, asking a departmental supervisor for the position or other employees to attend an interview to determine if an applicant might be a good fit is common. If these individuals are going to be in a position where they may ask an applicant any questions, they must be trained on what questions they may and may not ask. Asking what seem to be friendly questions that we would ordinarily ask of someone we just met in our everyday life outside of work could prove to be a landmine for your company if asked during an interview.
Below is a list of federal statutes that should be reviewed prior to any type of interview being conducted:
Title VII of the Civil Rights Act of 1964
- Religion Discrimination
- Religious Inquiries
- National Origin
- Sex Discrimination
- Martial Status
Immigration Reform and Control Act of 1986 (IRCA)
Pregnancy Discrimination Act (PDA) of 1978
Uniformed Services Employment and Reemployment Rights Act (USERRA)
Americans with Disabilities Act (ADA)
The Equal Pay Act of 1963 (EPA)
Fair Credit Reporting Act (FCRA)
The failure of an employer to ask permissible interview questions could [and will] be costly to an employer. As a result, an employment law attorney should review an employer’s interview questions to ensure that an employer’s interview process is in compliance with all applicable laws.
Stuart Oberman, Esq., is the founder and president of Oberman Law Firm in Cumming, Ga. To contact him: stuart@obermanlaw.com.
Grace Tillman, Esq., is an associate attorney at the firm.
