Interviewing a prospective employee is a vital component of the hiring process. If done effectively, the interview will enable you to assess an applicant’s skills, experience and personality to see if they meet the job’s requirements. You will also have the opportunity to determine whether the applicant will fit in with your corporate culture. To insure you select the most qualified candidates, employers must be well informed on conducting effective interviews. Employers must be aware of federal and state prohibitions on asking certain types of questions during employment interviews. With careful preparation, you can make the most of employment interviews and obtain the information you need to choose wisely.

While it is important to ask open ended questions structured so you learn the maximum amount about the candidate, it is equally important to avoid major pitfalls in asking inappropriate or even illegal questions. Following are some examples of common pitfalls:

1. Avoid making statements that could be construed as creating a contract of employment. When describing the job, avoid using terms such as “permanent,” “career job opportunity,” or “long term.” You should also avoid making excessive assurances about job security or statements suggesting that employment would last as long as the employee performed well in the position.
2. Various federal laws affect the questions you may legally ask during an interview:

Title VII of the Civil Rights Act of 1964, you may not ask a question regarding race, sex, color, national origin and religion. Questions on these topics should be completely avoided unless the question relates to a truly bona fide occupational qualification or is required by federal or state law to be asked.

The Age Discrimination in Employment Act of 1967, you may not ask about an applicant’s age. An employer may not ask if a candidate has a disability. You may only ask if there is anything that precludes the candidate – with or without a reasonable accommodation – from performing the job duties required.

The Americans with Disabilities Act of 1990 protects qualified individuals with disabilities from discrimination in employment.

The Genetic Information Nondiscrimination Act of 2008 prohibits employers from collecting and using genetic information.

Additionally, be aware that some questions that appear innocent may be considered discriminatory based on the way they are phrased. Employers should determine in advance of the interview if the information sought by each question is really necessary for assessing an applicant’s competence or qualifications for the job.

Even if a particular question would not be barred by law, it should not be asked if it is not essential. Asking irrelevant questions may offend an applicant or damage the organization’s reputation. Following are examples of questions not to ask during an employment interview:

• Are you a U.S. citizen?
• Were you born here?
• Where are you from?
• What is your ethnic heritage?
• What is that accent you have?
• How old are you?
• When were you born?
• Are you married?
• Do you have any children? What are your child care arrangements? (Questions about family status are not job-related and should not be asked.)
• When did you graduate from high school?
• What church do you go to?
• What clubs or organizations do you belong to?
• Have you ever filed a worker’s compensation claim? (You may not ask this question or any related question during the pre-offer stage.)
• What disabilities do you have?
• Do you have AIDS, or are you HIV-positive? (There is no acceptable way to inquire about this or any other medical condition.)
• Have you been arrested? Questions about arrests that did not result in a conviction should never be asked.
• Please submit a photograph. An application should never ask an applicant to submit a photograph – even if the request makes clear that compliance is optional, not mandatory.

It is important for interviewers to be familiar with the employment laws and to be well versed in the federal and state legal provisions regulating the types of questions permissible in an employment interview. If you need assistance in preparing employment applications, preparing job interview questions, or general issues of employment law, the attorneys at Waldron & Schneider would be happy to assist.

The legal information in this blog entry is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, nothing contained in this article is intended to create an attorney-client relationship with any reader. This article and website are made available by Waldron & Schneider for educational purposes only and to give basic information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and Waldron & Schneider. The article and website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.