Stay Legal on Permanent Employee Interviews | DCR Workforce Blog

Stay Legal on Permanent Employee Interviews

When you are 20, 35 may seem older but when you get to 55 you may say 70 is old! It is all about perspective and personal opinion. Jack Welch had advocated against hiring the older worker (in his “Winning”) but I have met recruiters who hold firmly to the thought that “You cannot hope to get a wise head on young shoulders!

This is why certain personalized interview questions, which allow people to give free rein to their personal wisdom, are held illegal. When hopeful candidates put in every possible effort preparing for a job interview, to end up facing questions which seek to ascertain the details of their personal lives instead of pertinent ones about their skill sets, career goals and expertise, it could lead to a huge let down for the candidates and possible legal consequences for the interviewer.

Among the list of things that need to go into an interview – testing the skills of a candidate has its own place, and here, we only try to look at the regular interviews conducted to hire permanent employees and what would be considered illegal on them and why. Diligent interviewers steer clear of all questions which even have a flavor of the illegal ones that cannot be brought up in a job interview to avoid future repercussions. Let no one assume that the candidates may not be aware of them in this Age of Google where people get to learn a whole lot of things in a nanosecond.

Caveat Recruiter:

The illegality behind any personal pre-employment inquiry arises from harboring a motive to deny or restrict employment to or screen out people because they are female or members of minority religious or ethnic groups or have disabilities even if they may not restrict the person’s performance on the job.  The ethnic approach has been reserved for a separate post and we deal here with the regular issues around the questions on an interview.

  1. How many children do you have? is illegal under Title VII of the Civil Rights Act as it helps to assume a woman’s need for childcare arrangements all the way to her availability as an employee. If it was necessary to determine the availability, a straight forward approach towards the person’s choice of hours or availability for shifts/week-end & holiday work would be more appropriate.
  2. Questions about height and weight are illegal unless the employer can prove that they are essential for safety on the job in question or if they disqualify a disproportionate number of minority group members including women.
  1. Questions about prior arrest records (which have not resulted in a conviction) and conviction records may be asked only if justified by the role requirements. In all, 19 states* have laws that limit/prohibit the use of such questions and the use of such records in making an employment decision. The EEOC wants the employers to be able to justify the elimination of candidates based upon 3 factors.
      • Time elapsed since the conviction till the selection process,
      • Relation between the offense and,
      • The nature of the job in question.

       (*CA, CO, CT, GA, HI, ID, IL, MA, MI, MO, MT, NE, NY, OH, PA, RI, UT, VA and WI )

  1. Do you own your own home/car? Did you ever declare bankruptcy? – are illegal unless they are in compliance with the Fair Credit Reporting Act and the Consumer Credit Reporting Reform Act.
  1. When discussing a candidate’s military service, the interviewer may ask about the period in service, rank when discharged, training received and work experience but shall not ask about the type of discharge received.
  1. How old are you? is prohibited too to protect individuals over the age of 40. Application forms also may not seek a date of birth for the same reason without a valid reason. Asking a candidate for their date of graduation is seen as a blatant attempt to circumvent this stipulation.
  1.  What religion are you? is not justified by any job other than one offered by a religious institution. By extension, it is also not legal to ask someone about their availability to work on Friday evenings, Saturdays or holidays. Ìf these questions are said to be required by the job, the employer needs to prove that the answers were not utilized to exclude anyone from the process.
  1. Do you have any physical/psychiatric disabilities? is another question which is prohibited Or medication/drug use or alcohol consumption.  An employer can verify if the candidate is confident of performing the essential functions of the job in question, and verify if any reasonable accommodation will be required or not.

A rule of thumb would be for interviewers to avoid all questions of a personal nature, be they gender related or about personal preferences or religion and sexual orientation, or about the candidate’s friends and relatives, unless they can demonstrate a clear and admissible correlation to the job in question. As was emphasized by the Supreme Court which found fault with a job  which required high school graduation saying its only purpose seemed to be eliminating blacks as a group and not because it was required for the job itself.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.