Content from: www.schafferassociates.com
While state and Federal “fair hiring laws” may seem cumbersome and far-reaching at times, in reality, they serve two very important purposes. First, such laws allow candidates for employment the opportunity for a fair assessment that is free from bias based on certain stereotypes during the interview process. Second, they protect employers and recruiters against discrimination suits brought by unsuccessful applicants for employment. While there are some specific dos and don’ts for hiring professionals to follow, there are some basic, common sense rules of thumb that will go a long way in keeping the hiring process fair and employers out of trouble.
As a foundational point, it is unlawful for employers to ask questions related to protected classes such as race, gender, nationality, religion, military status, and age, unless they specifically relate to the job, as discussed below. Building on that premise, it is vital that employers keep all of their questions relevant to the candidate’s ability to perform essential functions of the job at hand. Interestingly, this will necessarily require a well-developed and written job description that contemplates such issues. Finally, recruiters or hiring managers should resist the temptation to make assumptions about a job applicant’s ability to perform a particular job.
The following list represents a veritable checklist of dos and don’ts for employers. Hiring managers would be wise to incorporate them into their regular interview process.
AGE
DO NOT ask:
- How old are you? When is your birthday?
- What year did you graduate from [high school/college]?
- How long have you been working? How long have you been working in this [industry/sector]?
YOU MAY ask:
- If hired, can you provide proof that you are at least 18 years old?
ALCOHOL OR DRUG USE
DO NOT ask:
- Do you drink? What are your drinking habits?
- Have you ever been treated for alcoholism?
- Have you ever used illegal drugs?
YOU MAY ask:
- Do you currently use illegal drugs?
For purposes of illegal drug use, “current” use may include the period of time beginning six months prior to the interview.
CRIMINAL RECORD
DO NOT ask:
- Have you ever been arrested?
YOU MAY ask:
- Have you ever been convicted of a crime?
It is important to note that, in some states, criminal convictions are not de facto disqualifiers for employment unless they specifically relate to the job at hand. For instance, a past conviction for statutory rape may be a disqualifier for a teaching position, while it would not similarly disqualify the applicant for an accounting position. Consult your state laws and local counsel for more information.
DISABILITY
DO NOT ask:
- How did you become disabled?
- How long have you been disabled?
- How did you obtain that scar?
YOU MAY ask:
- Are you able to perform the essential functions of the job? (The hiring manager should first explain the essential functions of the job and then allow the applicant to explain how he or she will perform these functions with or without reasonable accommodation.)
As stated, hiring managers may ask questions concerning disability provided that they are specifically related to performing the essential functions of the job. As it relates to such requirements, employers may ask about the applicant’s prior attendance records. Medical exams may be required, but only after the employer has extended an offer of employment. Finally, these rules apply to individuals with actual disabilities as well as perceived disabilities.
FINANCIAL OR SOCIOECONOMIC STATUS
DO NOT ask:
- Do you own your own home?
- What is your personal financial situation at this time?
- Do you have any outstanding debt?
- In what area of town do you reside?
YOU MAY ask:
- Do I have your permission to conduct a credit history check?
Information regarding personal finances and credit history are relevant only to the extent that it impacts an individual’s ability to perform the essential job functions of the position. As such, outstanding debt or poor credit history are not automatic disqualifiers unless they relate to the job. Questions regarding socioeconomic status are problematic as they may implicate information relating to race, which is off-limits for employers.
GENDER
DO NOT ask questions or engage in a line of dialogue that indicates a bias based on gender stereotypes. More information on this topic can be found below.
MARITAL OR FAMILY STATUS
- DO NOTask:
- Are you married?
- Would you tell me about your family?
- Do you have children? When do you plan to have children?
- Do you have adequate child care during the workday?
- Are you pregnant? When is your baby due?
YOU MAY ask:
- Do you have any concerns with being able to [work late hours/travel during the week/travel overseas] as required by the job?
- Do you have responsibilities that will impact your ability to perform the specific job requirements such as [working late hours/traveling during the week/traveling overseas]?
Questions related to marital or family status are permitted only to the extent that they relate to the applicant’s ability to perform the job. Otherwise, they are strictly off-limits as the law prevents employers from being able to make hiring decisions that contemplate gender biases or stereotypes, such as women with children will be less committed to the job than men or than women without children.
MEMBERSHIP
DO NOT ask:
- Are you a member of any clubs, social organizations, or unions?
YOU MAY ask:
- Are you a member of [job-relevant] professional association?
MILITARY STATUS OR SERVICE
DO NOT ask:
- How often are you deployed for training exercises?
- What type of discharge did you receive in the military?
YOU MAY ask:
- Would you describe the [education/training/work experience] you received while you were in the military?
Questions involving an applicant’s military service (current or prior) are off-limits to the extent that they relate to the applicant’s ability to work for the employer and thus lead the employer not to hire the applicant. As such, while not specifically addressed in the questions above, an employer may ask if the applicant has military experience for purposes of characterizing such experience as a positive factor in the hiring process.
NATIONALITY, NATIONAL ORIGIN, OR CULTURE
DO NOT ask:
- What country are you from?
- Is English your first language?
YOU MAY ask:
- Are you authorized to work in the United States?
- Upon hire, can you provide proof of your legal right to work in the United States?
- What languages can you [speak/read/write] fluently?
Hiring managers may inquire into an individual’s proficiency with a particular language provided that such proficiency is necessary to perform the specific job functions.
RACE
DO NOT ask questions related to race, color, or ethnicity.
RELIGION
DO NOT ask:
- Are you a religious adherent?
- What religion, if any, do you practice?
YOU MAY ask:
- Do you have a problem working on Saturday or Sundays (if such days are required work days)?
Note that religious institutions and some other organizations are exempt from fair hiring laws based on an individual’s religious faith or lack thereof. Consult an attorney to determine if your organization is subject to such laws.
While employers may maintain an absolute adherence to these rules, it’s hard to prevent candidates from offering information that falls into these off-limits categories. When this occurs, employers and hiring managers would be well-advised not to engage in this point of discussion with the candidate, not to make a note of it, and not to consider it as a factor when making the hiring decision.
Reviewing the aforementioned dos and don’ts can make the employer feel like he or she must walk on pins and needles when interviewing a job candidate. To an extent, this is true, but such diligence is necessary to protect both the candidate and the employer.
The information contained in this article is solely for information purposes and is not, and is not intended to be, legal advice. This information is not intended to create, and does not create, an attorney-client relationship. You should consult an attorney for advice regarding your individual situation.
