3 interview questions employers shouldn’t ask (but often do!)
While most companies know that job interview questions directly related to protected characteristics such as age, race, disability and religion are off limits, there are other areas of interview questioning – including seemingly innocent small talk – that also can get employers in trouble. Here are three areas where businesses should tread lightly while questioning jobseekers.
1. Asking applicants about family/personal lives
Although it seems like a good icebreaker to ask a candidate about his or her family life, employers should avoid asking questions that may reveal information about family status, such as whether an applicant has kids, is planning to have kids and/or is a caregiver to an aging parent. Marital and family status are protected categories in some jurisdictions. Even where they are not, asking these questions puts employers at risk for lawsuits from rejected candidates who may claim they did not get the job because the company thought they would need to take time off for family responsibilities.
Employers similarly should avoid asking questions that could reveal a candidate’s ethnic or religious background. A seemingly innocuous question such as, “I love your accent. Where are you from?” or “That’s an unusual name. Where are you from?” can land an employer in hot water. While questions like this are traditional conversation starters, they can result in obtaining information that an employer cannot consider in its hiring decision and therefore is better off not knowing.
Even the seemingly harmless question, “What do you do in your free time?” could lead a candidate to reveal information, such as religious or political affiliation, that employers cannot legally take into account in the hiring process. The lesson here is not to ask a question unless it is related to the job for which the candidate is interviewing.
2. Asking applicants about criminal convictions
In the past, employers have used criminal history to automatically eliminate certain candidates from consideration. However, criminal background can no longer act as an automatic disqualifier for most jobs. The federal Equal Employment Opportunity Commission (EEOC) takes the position that using criminal conviction history in making hiring decisions can violate federal anti-discrimination laws. The EEOC recommends that employers not ask about convictions on job applications and that, if and when companies make such inquiries, the inquiries are limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.
In addition, some jurisdictions, like New Jersey and Philadelphia, have “ban the box” legislation that prohibits an employer from requesting criminal history at the application stage, and some jurisdictions, such as Pennsylvania, permit employers to consider felony and misdemeanor convictions only to the extent to which they relate to the prospective worker’s suitability for employment in the position for which he or she has applied. In almost all situations, the employer cannot consider arrests that did not result in conviction. Employers therefore should be well versed in their state and local law before asking any questions about a job seeker’s criminal history.
3. Asking applicants about salary history
In the past, it was a common practice for employers to ask applicants for salary history and to use that information as part of the hiring process. In recent years, however, a number of states and municipalities have determined that such practices can contribute to the gender wage gap by perpetuating past discriminatory pay decisions. As a result, many jurisdictions have enacted salary history inquiry prohibitions. Although there are some differences in scope and detail among these various laws, in many locations, such as New Jersey and New York, it illegal for employers to request information regarding job seekers’ past salaries and use that information to set their new salaries unless the workers voluntarily disclose their pay to negotiate for more money.
As with all of these issues, this change in the law requires a review of job applications and hiring policies as well as training for any individual within an organization who conducts job interviews to know what questions should and should not be asked. If your business in uncertain about proper areas of questioning during job interviews, consult with experienced human resources professionals and/or labor and employment counsel. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
About the Author
Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.