Are You Asking Illegal Questions During an Interview?

Did you know that making small talk with candidates during a job interview could lead to a discrimination lawsuit? What you learn could hurt you ...



Most employers are smart enough to not knowingly do something illegal. But did you know that making small talk with candidates may lead to unintentional work-around questions that could put your business at risk?

Here’s what I mean.

How "small talk" in interviews can hurt you

Let’s say you interview candidate A. You ask a few "small talk" questions:

  • “How many years of experience do you have?”
  • “Are you married?”
  • “Tell me about your family - do you have kids or plan to?”
  • “Where did you learn to speak Spanish?”
  • “What’s your management style?”

You finish the interview thinking she’s pretty amazing and would make a great addition to the team. But then candidate B comes in. You ask her about the tools she uses to do the job, how many years of experience she has, where she got those great shoes, and does she have a nickname.

Candidate B has a little less experience than candidate A, but she has extensive experience with the tools your company uses and has a documented record of success with them. Candidate A has none of the above. This means Candidate B could be up and running in the first week, so you offer the job to her.

Then a lawsuit shows up: candidate A claims you discriminated against her because she indicated she plans to have kids someday (remember asking her about her family?). There’s no way you’re getting out of this one.

Although you were just trying to get to know the candidates better, your small talk included several “Illegal” interview questions that could point to a bias: that you didn’t want a candidate who might go on maternity leave or need to miss a day with a sick kid.

Questions employers cannot ask during an interview

There are interview topics made off-limits by the EEOC, as well as other taboo subjects that should not be asked about in a job interview. These include:

  • Age
  • Genetic Information
  • Religion
  • Gender or sexual orientation
  • Marital status, family, or pregnancy
  • Race, color, or ethnicity
  • Medications they are taking
  • Disability
  • Unemployment status
  • Financial situation
  • Medical history or health
  • And more!

Some states and municipalities also ban employers from asking salary history -- regardless of whether the company operates in the state or are simply talking to a candidate who resides there. Violating any of these can put you at risk of a lawsuit.

There’s more: you can’t rig your applicant tracking system to ask or screen based on questions like these (even if not stated directly), nor can you write job descriptions that weed out candidates before they ever apply.

Facebook learned this the hard way when it settled a case with the State of California stemming from employments ads with a stated preference for college grads from specific classes -- definitely not something you want to do after your CEO publicly states that “young people are just smarter.”

That means employment ads that seek “digital natives” won’t fly, nor will setting up your applicant tracking system to weed out anyone with more than seven years of experience, which could eliminate workers over the age of 40 (they’re protected).

(By the way, the Facebook incident isn’t an anomaly: additional similar lawsuits have pointed at poor HR practices on behalf of multiple industries, especially tech companies.)

Do managers know the rules of interviewing?

Even if you know the rules, every person in the hiring process at your company may not. Large companies with strong training programs have even fallen short when it comes to teaching managers what’s right and wrong with screening job candidates.

The lawsuit against Abercrombie & Fitch in which an applicant wasn’t hired because of her headscarf serves as a great lesson: compliance concerns start the moment you write a job description and continue through the end of your relationship with the job candidate.

In May of 2018, a restaurant chain in Florida agreed to pay a $2.85 million settlement for telling job candidates that they didn’t hire “old white guys.” (Yes, I’m serious.) New class-action suits are also pending that focus directly on targeted ad placement.

Beyond reviewing the EEOC rules, I advise all companies, regardless of size, to invest in training for anyone who could become involved at any stage of the hiring process, and to ensure you have someone available to stay up to date on compliance fails at other organizations, too.

Interview-related employer mistakes can get incredibly costly, from legal fees and bad press, to poor customer reviews and punitive damages. Any way you look at it, hiring can be a costly proposition for employers. It pays to stay up to date on all rules.

For more information, please contact your certified HR expert. Not a current client and want to learn more about how Stratus HR can help protect your business? Book a consultation today!

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