No one sets out to ask discriminatory questions. But many a well-intentioned manager has gotten into trouble by innocently asking illegal or inappropriate questions. Since forewarned is forearmed, here are the 10 most common questions that could get you into hot water:
1. What’s your maiden name so that I can check your references?
Asking for a woman’s maiden name can discriminate against her on the bases of martial status and possibly national origin. Instead, try asking the candidate whether they have used other names in the past that will allow the company to verify their work experience and education.
2. How old are you? When did you graduate from high school?
State and federal law protects workers over 40 years old. There’s no problem asking someone when they graduated college because people can graduate from college at any point in their lives. In contrast, nearly all high schoolers graduate at about 18. A candidate’s year of birth can be easily determined by subtracting 18 from the year of graduation.
3. Where were you born? Are you a U.S. citizen? Where did you learn to speak Spanish?
These questions transgress guidelines regarding national origin, birthplace, and citizenship. Instead, interviewers can ask if a candidate can submit verification of their legal right to work in the United States. Questions regarding native language or foreign language should generally be avoided unless such language proficiency is an essential function of the position.
4. Are you married? Can you make adequate provisions for childcare?
It’s a legitimate concern to wonder whether a potential employee can meet overtime demands, fly out of town on last-minute notice, or consistently report to work on time. However, employers are limited by law to stating such things as standard working hours, any overtime demands, and company travel expectations and then questioning whether candidates would have any reason why they couldn’t meet those requirements.
5. Would your religion prevent you from working weekends?
Asking such a question discriminates on the bases of religious affiliation. Instead, state that weekend and holiday work is required and ask if that is acceptable as a condition of employment.
6. Are you disabled? Have you ever filed a workers comp claim? How many days were you sick last year? Do you have AIDS?
The Americans with Disabilities Act of 1992 requires businesses with 15 or more employees to make their facilities accessible to the physically and mentally disabled and prohibits job discrimination because of disability. Companies can’t exclude a qualified candidate from a job if that candidate can perform the "essential functions" of the job either unaided or with a "reasonable accommodation." Candidates can be given a job description that differentiates between essential and nonessential job functions and asked if they are capable of performing the position’s essential job functions with or without a reasonable accommodation.
7. Have you ever been arrested?
People who are arrested are often not convicted, because either they are innocent, or there isn’t enough information to justify a conviction. Candidates can be asked if they have ever been convicted of a felony, but this felony question (usually found on the employment application) must be accompanied by a statement that a conviction will not necessarily disqualify the candidate from consideration for the job.
The language in an employment application should be scrutinized and adapted to meet the laws of the state, as states define felonies, misdemeanors, and "wobblers" (unlawful acts that can go either way depending on the circumstances) differently.
An employment attorney should be consulted before accepting or rejecting a candidate who has been convicted of a felony.
8. What kind of discharge did you get from the military?
Military service questions must be limited to relevant skills acquired during service. No questions about the nature of the discharge - honorable or otherwise - may be asked.
9. Have you ever declared bankruptcy or had your wages garnished?
There are no acceptable alternative questions that address these issues. But, employment offers can be contingent upon a credit check if applicable state and federal laws are followed and good credit is necessary to perform the essential functions of the job.
10. Who is the nearest relative we should contact in case of emergency?
It’s fine to ask for someone to contact in case of emergency, but asking for the "nearest relative" could border on discrimination by national origin, race, or marital status.
Adapted from THE HIRING AND FIRING QUESTION AND ANSWER BOOK, by Paul Falcone.
© 2002 Paul Falco. All rights reserved.
Published by AMACOM Books
Division of American Management Association
New York, NY 10019