Welcome back to InterviewLand! Today, on the last part of our journey we visit Employer Best Practices City. We have already outlined illegal questions, i.e., ones employers can’t ask. We then talked about questions employers shouldn’t ask (ill-advised questions). So what can employers ask? How does an employer ascertain whether a candidate is a) qualified for the job and b) suited for the job and the company culture? Is there a way to ask or phrase certain questions that addresses the employer’s concerns without either running afoul of federal and state anti-discrimination laws or risking a lawsuit alleging violations of those laws? Yes, there is, and that is what we will cover today, after the jump!
Interview questions should focus on ascertaining that the candidate is able to perform the essential job functions, and that s/he will otherwise be a good “fit”. Many employers ask questions that they think are appropriately focused, only to find that they have opened themselves up to discrimination allegations. Let’s see how we might rephrase or reframe some of the questions from last week’s post to get better results.
Questions resulting in disclosure of national origin: The examples from last week’s post (Click here for a review) included “What type of accent is that”? “Where are your parents from”? “Is English your first language?” To figure out what you can ask, you first need to determine why you are asking that question. Suppose you do not want any immigration status issues. Consider instead, “Are you authorized to work in the United States?” You could also advise the candidate that if hired s/he will have to complete an I-9 and provide appropriate documentation of his or her identity and eligibility to work in the United States. Suppose the job for which you are hiring involves a lot of writing in English. You need to ascertain that the candidate is extremely proficient in English. You could ask if the person is comfortable with a lot of writing, can self-edit, etc. You can also ask for a writing sample–as long as you require one from all candidates for that position.
Questions that could elicit disclosure of age:We established that questions, such as “How old are you?” “When did you graduate high school, college, etc.?” “How long would you plan to stay here if we hired you?”, are at best ill-advised, because a rejected candidate over 40 might believe that his or her age was the reason for the rejection. If the person is young-looking and you want to ensure that s/he is legally allowed to work, you can ask if the person is over 18. If the person is a minor you can ask if s/he has a work permit (if applicable). Suppose age is a legal requirement. In that case you can ask, “If you are hired, can you provide proof of age?” After hiring, you can ask for a birth certificate or other proof of age.
Questions that could compel disclosure of a medical condition or disability: Examples included “How many sick days did you take last year?” and “Have you ever taken FMLA leave?” These types of questions suggest that the a concern about attendance. Instead, consider telling the candidate, ”The hours for this job are such-and-such and that is an essential function of this job, because… Do you anticipate that you will be able to adhere to this schedule?” In general if the job functions include tasks that persons with certain disabilities may not be able to perform, even with a reasonable accommodation, you can outline the essential job functions and ask if s/he can fulfill all those functions with or without a reasonable accommodation in a safe manner. You can also ask candidates to demonstrate how they might perform certain tasks, if and only if you require the same demonstration from all candidates for the position in question.
Questions that could lead to disclosure of one’s religion, sexual orientation, marital status or existence of children:Examples in this category included “What organizations do you belong to?” “What do you like to do in your spare time?” Why do employers ask these types of questions? Some want to know if the candidate’s outside interests will impede their ability to perform their jobs. Alternatively, perhaps a candidate active in the community or in business groups is a “plus” for the employer. Consider instead, “Are there any professional organizations of which you are a member?” Other examples of “problem” questions in this category: “Whom do you live with?” “Are you married?” As for questions about family, some employers want to know who they might contact in an emergency. If that is the reason, the question is at best premature. After hiring, you can ask for the name of someone to contact in an emergency. You can also verify address and marital status after hire, for purposes of insurance and tax withholding. If you are concerned again, about your employees being able to show up consistently and on time for work, then, again, let the candidate know the schedule, that adhering to it is essential and why, and ask all candidates if s/he will be able to do so.
We can boil it all down to two “rules of thumb”:
1. If you ask a question, require demonstrations, documentation, etc, do the same thing with every candidate for the same position. Do not, for example only ask for a task demonstration of those you regard as possibly disabled.
2. Only ask questions or require information that is related to the essential job functions. If it is not related to job functions or qualifications, don’t ask!
Are there any other best practices? Of course! Here they are:
- Write and consistently apply policies and procedures for your screening and hiring process
- Train all employees involved in the screening and hiring process and train all managers as to your policies and procedures;
- Train your employees on the federal and state anti-discrimination laws;
- If you have an affirmative action plan, make sure that all employees involved in the screening/hiring process are familiar with it;
- Monitor compliance with your policies and procedures;
- As soon as you hear of any problems presented with any particular candidate or interview process, respond quickly and attempt to address whatever issues are raised.
- Periodically review your policies and procedures, and when appropriate, update them.
Yes, it all seems like common sense and could be applied in other contexts. Nevertheless many employers fail to take these measures and do so at their peril.
We you made it! You are done visiting InterviewLand — for now– and you hopefully have a better idea of the do’s and don’ts when interviewing. Next week, we will start a different chapter and look at investigations. Don’t miss it!
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
via So What “Can” I Ask in the Interview? Some Best Practices for Employers | The Emplawyerologist.
So What “Can” I Ask in the Interview? Some Best Practices for Employers
