*Please note, “Legal Beagle” articles are general legal guidelines and are not meant to replace legal counsel. Please see your local Paralegal, or Lawyer for detailed case-by-case information.
This information was first published in HR People; it is worth repeating for anyone that did not see it the first time. Donna
6 Illegal Interview Questions You Shouldn't Ask
Need a refresher on which questions you can and can’t ask when conducting a job interview? There’s no shame in reusing the old standbys, such as “Where do you see yourself in five years?” and “What’s your greatest weakness?” And the more colourful questions, such as “What animal best describes you?” and “If you were stranded on a desert island, what three items would you want to have with you?” that can help you get a better sense of a candidate’s personality.
Regardless of what questions you choose, there are a handful of interview questions you should never ask. Be aware — questions about subjects in these categories violate candidates’ rights:
• Age, National origin, Birthplace, Race, Colour, Religion, Disability, Sex, Marital/family status.
However, don’t assume that personal questions are automatically off-limits. It’s your job to assess whether someone is fit for the job. While you can’t and shouldn’t directly about any of these topics, don’t be hesitant to get the information you need. Given the right context, it’s perfectly appropriate for candidates to discuss their families or religion with a potential employer. It all depends on how the question is phrased.
While it’s important not to ask illegal interview questions, there are legal alternatives. Be prepared and know your options by checking out these six examples of illegal interview questions, and how they can be rephrased to comply with the law.
1. ILLEGAL: “Are you a U.S... Canadian citizen?”
LEGAL: “Are you authorized to work in the U.S./Canada?”
As a company representative, you’re not allowed to ask about national origin, and that includes inquiring about citizenship status. Touchy immigration issues aside, this question makes unnecessary assumptions based on a candidate’s looks and racial stereotypes. On the flip side, you can ask if a candidate is allowed to work in the U.S. By rephrasing the question, you’re avoiding directly asking about citizenship, green cards, and visas, but you’re still getting the essential information you need.
2. ILLEGAL: “How old are you? When did you graduate from college?”
LEGAL: “Are you over the age of X?”
Whether someone looks to be 18 going on 48 or 60 going on 40, you’re not allowed to discriminate against age (which is what the first question implies). However, when asked differently, the question becomes legal. Just make sure you’re asking about the legal requirements to complete the job. Don’t ask, “Are you over the age of 65?” if the job only requires employees to be 18.
3. ILLEGAL: “How much do you weigh?”
LEGAL: “Are you comfortable with lifting heavy objects?”
If there are physical requirements for a job, then you may need to know some details about a candidate’s health. However, asking directly about weight/height and general health is a major HR no-no. Not to mention potentially embarrassing for the person you’re interviewing! But rephrasing the question to ask about a candidate’s ability to perform a specific task is fair game and essential.
4. ILLEGAL: “Do you have any disabilities? Any recent illnesses or operations?”
LEGAL: “Are you able to perform the essential job functions?”
Discriminating against the disabled, whether in a wheelchair or clinically depressed, is a classic example of illegal hiring practices. But you still have a right to make sure candidates can do the job they’re hired for, so be sure to rephrase the question accordingly.
5. ILLEGAL: “Ever been arrested?”
LEGAL: “Ever been convicted of ___?”
A general question about someone’s (criminal) past is off topic, but a more targeted question regarding questionable behaviour — as it relates to the job — is okay. For example, if you were hiring for a job as a magician, it’s appropriate to ask if candidates have ever been convicted of fraud in their line of work.
It’s not so much what the question is asking, but how the question is asked. Federal and state laws prevent you from asking interviewees about subjects unrelated to the job. Before you enter an interview, take into consideration the nature of the job, the context of the situation, and of course, the phrasing of the question. Write out your questions ahead of time and read them directly from your notes or create a form with the trickiest questions so you don’t accidentally ask something that’s off-limits. If you do, candidates could seek legal counsel and your reputation – not to mention your job – could be in danger. So stick to your list, follow the law, and good luck hiring!
6. ILLEGAL: "Are you married? How many children do you have? Who do you live with?
LEGAL: “Can you relocate if necessary? Are you willing to travel as a part of this job? Can you work overtime as necessary?”
Only candidates are being interviewed – not their spouses and families. Anything about living situation, roommates, finances, spouses, children, etc., is off limits. But you often need to gauge how busy candidates are in their personal lives to see if personal obligations will clash with work responsibilities, and it’s perfectly legal to make a hiring decision based on this factor. On the other hand, if a candidate can commit to the necessary work hours and agree to the job requirements, then personal responsibilities shouldn’t matter. A related tip – remember not to ask for a woman’s maiden name. Instead ask everyone if they’ve ever worked under another name. You may need this when checking references – for women and men.
© Copyright, 2010 Main Street Magazine/Rain Enterprises
As seen in the November Issue of Main Street Magazine.
Printed in Canada, ISSN: 1920-4299 by Rain Enterprises
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