The skilled, experienced and ethical HR professional or recruiter is well-versed in staying away from illegal interview questions. That being said, many of today’s interviews are conducted by small business owners or department leads or managers who are not trained, experienced or aware of what could be construed as an illegal interview question.
What are some questions or topics interviewers should never ask applicants about? What are some topics that, if brought up and discussed, can open up an employer for possible discrimination lawsuits?
Mark Babbitt, CEO and Founder of YouTern, a web site and community that enables young talent to become highly employable by connecting them to high-impact internships and mentors, and co-author of A World Gone Social, a book that provides the tools you need to build a socially enabled team that puts the customer experience first, offers some must read tips that can benefit HR professionals, recruiter, small business owners and others who interview:
Age discrimination, especially for those over 40, is a huge issue in the current job market, says Babbitt. Many employers seem to feel that a younger applicant may be more tech-savvy, better networkers and – perhaps most important – less expensive than older, more-experienced applicants.
Questions such as “What year did you graduate high school?” or “When did you finish college?” can be construed as thinly veiled ways of determining age. Instead of resorting to such obvious tactics, simply wait until the applicant produces proper identification for insurance forms and tax information.
Race, Religion or Country of Origin
While questions such as “Where were you born?” (or “Where were your parents born?”) and “When did you first learn to speak English?” may seem innocent enough, they are strictly forbidden during job interviews. That doesn’t stop some recruiters from digging deeper, however: a subtle mention of travel over the holidays nearly always brings up the desire of the applicant to “go home.” During that conversation, the country of origin and race – and sometimes even religion – is established.
If the job requires specific languages to be spoken or the knowledge of certain cultures – which is becoming more and more common in our global market – simply ask: “Which languages do you speak and write fluently?” All other questions about race, creed and birthplace can wait until verification of residence or the possession of a work visa is proven, says Babbitt.
Marital Status and Family Situation
Recruiters know it is illegal to inquire about marital status, the presence of children in the home, how many generations live in their home now, etc. However, more than any other question the answers to these questions are easily determined during the small-talk portion of the interview.
For instance, while pointing out a family picture placed strategically on the desk, the recruiter simply mentions a challenge they had with their children or spouse this morning. They know the applicant has a strong desire to build rapport with the interviewer and will respond with a story of their own. Even if the applicant comes back with an anecdote about their dog, cat or goldfish – and never mentions children or a co-parent – the recruiter learns a great deal about family status.
Past Alcohol or Drug Use
While an employer may ask about an applicant’s present drug or alcohol use, they may not ask about past use or the possibility of abuse. Specifically, the topic of alcoholism is protected by the Americans with Disabilities Act.
There are, however, accounts of recruiters taking the side-door to determine the answer to these questions. For instance, if the applicant lists a social fraternity or sorority on their resume or in their LinkedIn profile, a recruiter may tell their own stories of mild-to-wild parties in college. The goal: to determine the frequency or history of alcohol or drug use by the applicant.
Military Service Record
“While most veterans will proudly discuss their service to their country, there are certain aspects of their time in the armed forces an employer is not allowed to ask,” says Babbitt.
Specifically, questions about the type of discharge or conditions of discharge and asking if they can prove they received an honorable discharge are forbidden. Instead, an employer can ask the veteran applicant about the relevance of the work experienced obtained during their time in the military as it specifically relates to the job applied for by the veteran
An employer can ask applicants if they have a criminal record. However, the employer cannot ask questions such as “Have you ever spend the night in jail?” or “Have you ever been arrested for a crime?”
In each and every case, an employer is best served by asking the “Have you ever been convicted of a crime?” question and letting an extensive background check do all the heavy lifting.
Of course, in the social age, a recruiter doesn’t need to be overly clever to learn personal information about an applicant, says Babbitt. A quick search on Facebook, Twitter, Pinterest and Instagram – where about 70% of us (according to Pew Research) have an active account, reveals pictures of our kids, pets, family life and lifestyle. In addition: age, religion, sexual orientation, the race of our parents and country of origin are often on display.
Ironically, the same applicants who freely give information to recruiters indirectly via social networking sites are more aware than ever of their rights as a job applicant, says Babbitt. After a simple Google search, they know which questions are allowed, and which are not. And when asked a question deemed illegal or inappropriate (“Do you enjoy drinking socially?” or “When was the last time you used recreational drugs?”) they think poorly of not just the interviewer, but the company they represent. Distrust forms; that bond the recruiter and the applicant were hoping for rarely happens.
How does a recruiter know if they’ve crossed the line? A member of the YouTern community – after being asked about where they lived and how long their commute might be if they were offered a position (a practical question, perhaps, but also illegal to ask) – replied:
“Rather than talk about personal issues, I’d like to discuss how my skill set is a great match for this position.”
At that point, the red flag has been firmly planted in the ground and the potential employee is most likely thinking, “I’m not really sure this is the kind of company I want to work for…”
“The available top talent is top for a reason,” says Babbitt. “They do their homework. They know what to expect. And the majority of them – unlike a generation ago – know when a question is legal and when it is not. “
But be cautious, warns Babbitt: Don’t risk your personal brand, or the brand of your organization, by asking the wrong questions or by cleverly disguising a query as conversation.
“Instead, earn the trust of top talent – and your reputation as a great employer, by creating a two-way, mutually beneficial discussion that centers exclusively on the applicants ability to do the job well at your company,” says Babbitt.