Are You Asking Illegal Interview Questions?

A CareerBuilder survey finds one third of hiring and HR managers unsure of many interview questions' legality. Experts say "competing messages" are partly to blame for this uncertainty, which HR should be helping to eliminate.

Monday, May 4, 2015
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What is your religious affiliation?

Are you in debt?

Do you have children, or plan to have children?

These questions are more or less unrelated, but have at least one thing in common: They are all illegal to ask of job candidates during the interview process.

And, if you already knew as much, you're a step ahead of one-third of your peers in HR.  

Chicago-based CareerBuilder recently polled 2,192 hiring and human resource managers, asking participants if they knew these (and other) interview questions were unlawful. Thirty-three percent of the employers surveyed said they didn't know the legality of the aforementioned queries, as well as questions asking an applicant to reveal his or her age, a disability or political affiliation, for example.

In addition, 20 percent of respondents indicated they have at some point unwittingly asked an illegal question in an interview.

If these figures are any indication, there seems to be a lot of uncertainty around what can and cannot be asked of job applicants. Why?

"It's not because [hiring managers] have improper motives, or that they're asking improper questions because they don't care about people with protected-class status," says Diane Saunders, a Boston-based shareholder at Ogletree, Deakins, Nash, Smoak & Stewart.

Rather, the problem at least partly stems from the "competing messages" that employers are receiving from courts and government agencies such as the Equal Employment Opportunity Commission, says Saunders.

In the case of religion, for example, the EEOC and the courts "have long counseled employers that religious beliefs and practices are very individual in nature and do not need to follow the tenets of an organized religion," she says, adding that the EEOC has also "specifically cautioned employers to avoid assumptions or stereotypes about what constitutes a religious belief or practice, or what type of accommodation is appropriate."

At the same time, says Saunders, both discourage employers from making inquiries regarding applicants' religious beliefs or practices, which are generally seen as non-job related.

And yet, the EEOC's policy materials "only encourage employers to actively engage in a dialogue with applicants or employees concerning their conflicting religious practice and possible accommodations that the employer might provide for them after an employer is put on notice of the need for a religious accommodation."

The end result, she says, is that "employers have been given so many different pieces of information and principles that it's hard for them to know what they're supposed to ask and what they're not supposed to ask."

James Hammerschmidt, a Bethesda, Md.-based co-managing partner at Paley Rothman, and co-chair of the firm's employment law practice, offers another example of the ease with which an interviewer can inadvertently enter dangerous territory.

"The interview process is a time to get to know someone," says Hammerschmidt. "You're learning about [applicants'] professional backgrounds, but also about who they are. That poses a lot of dangers, and a lot of risk."

Simply asking a candidate in the course of conversation about when he or she went to high school, for instance, could be construed as an attempt at "pegging someone's age," he says, adding that "we're starting to see that question come off of job applications."

However good a hiring manager's intentions may be, asking an illegal interview question can have costly consequences, of course. As such, Hammerschmidt urges HR to develop standard interview question templates that remove as much risk as possible. This can get tricky, of course, even more so for larger organizations operating in multiple states or countries, each of which may have its own ideas of what constitutes a legal interview question.  

"Standardization can be a challenge," he says, noting that he has helped many clients develop "a kind of spreadsheet covering all the background-check issues in the states where they operate, so their local people know what they can and cannot do or ask.

"We typically have employers going for the lowest common denominator," he continues, "looking at the state [in which they operate] that has the most restrictions and creating a template based on that."

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That said, the interview process doesn't have to be cold, rigid and devoid of imagination, adds Hammerschmidt.

"I don't think it's inappropriate to create [a set of standard] questions and ask interviewers to stick to them. And, some can be creative. You can ask candidates what they would do if they got caught in a blender and that kind of stuff. But even those kinds of questions need to be vetted to see if they pose a risk."

HR should be an integral part of this vetting process, and must ensure that all employees involved in interviewing know the lines they can't cross, says Fran Luisi, an Orlando, Fla.-based principal at retained-search firm Charleston Partners.

Communicating acceptable and unacceptable interview practices becomes that much more critical when individuals from different business areas step into the process, he says.

For example, "it's common to bring in non-HR people to assess [a job candidate's] technical competency," he says. "Or you decide on the spot to have someone meet with a potential candidate, just in a casual manner, without providing them the appropriate dos and don'ts."

In these instances, even the most seemingly innocuous lines of questioning could be misconstrued, says Luisi. 

"Suppose a candidate comes in and says, 'I just came from my son's soccer game.' So the interviewer says, 'Oh, how many kids do you have?' " he says. "There's nothing malicious in that, but [the potential issue] is how it could be perceived" as a question designed to entice an applicant into revealing his or her age.

HR professionals may sometimes "assume everyone knows these things," says Luisi, who sees room for improvement in communicating interview guidelines-and relevant regulations pertaining to interview questions-to any and all employees who participate in the process.

"I don't know if we in HR do a good enough job of developing [interviewers]," he says, "and in helping them understand their role in the interviewing process, and understanding what they can and can't ask."

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