Keeping it Legal What Not to Ask

In an ever-changing and increasingly transparent hiring landscape, there are often times when casual conversations and small talk lead into legally dangerous territory. The good news is that more and more employers are committing to creating family friendly work environments, eliminating gender wage gaps and promoting diversity; the bad news is that well-intentioned dialogue can lead to unallowable questions. While most employers are simply trying to gauge if a candidate is a good fit who shares their values and work culture, it is important to be invariably aware of practices which violate the guidelines of the U.S. Equal Employment Opportunity Commission (EEOC) or local Fair Employment Practices Agencies (FEPA’s).

Illegal interview questions include any inquiries related to a candidate’s:

  • Age
  • Race, ethnicity, or color
  • Gender or sex
  • Country of national origin or birthplace
  • Religion
  • Disability
  • Sexual Orientation
  • Marital or family status or pregnancy

These are just a few examples of what questions are NOT allowable and can put your company at risk for a lawsuit:

  • How old are you children? What kind of child care arrangements do you have in place?
  • What does your significant other do for a living?
  • How many more years are you planning to work until you retire?
  • Where did you live growing up?
  • What groups and clubs are you a part of outside of work?

Questions you MAY ask include:

  • Are you aware that this position requires 25% travel and variable start times?
  • If hired, can you provide proof of legal right to work in the United States (provide documentation examples)?
  • If hired, can you provide proof that you are 18 years of age (age restrictive industries)?
  • What professional organizations are you a member of?

interview man and womanEmployers can typically ensure compliance with legal hiring practices through two key areas: job relevancy and consistent interviewing and selection processes. Questions that are entirely job-related and designed to assess performance of essential job functions are unlikely to put your company at-risk when presented thoughtfully and objectively. Moreover, creating hiring practices and procedures in advance and executing them consistently over time demonstrates your company’s commitment to fair hiring. Utilize precise, relevant and professional language at all times and disallow ‘off-the-cuff’ remarks from interviewers. Beyond adhering to fair hiring practices, consider setting the bar high internally by committing to ongoing education and monitoring legal interpretation of existing laws.

Last but not least, there are times when prospective employees volunteer information that may violate fair employment practices. To ensure equal treatment of all candidates, utilize structured selection criteria that does not value the volunteered information. (For example, do not choose a candidate who has grown children over one with young children on that data point alone.) Do not use any volunteered data as a discussion point and be sure to actively educate hiring managers and panel members on the non-merits of such information.

As an organization, the PJF Group is proud to work with employers who are as committed as we are to championing equal opportunity not only from a legal perspective, but as part of a larger moral and ethical commitment. While the information we have provided here is in good faith and is a critical professional consideration, this information does not constitute legal advice and should not be employed as such.


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