When you first look for a new employee, you want to get all the information possible. But beware, as there are a number of rules all employers should keep in mind when going through the hiring process. Most importantly, you should ensure you are not asking illegal questions on a job application or during an interview that could lead to a potential discrimination lawsuit.
As a general rule, you may ask questions that are directly related to the job, its qualifications and its requirements. You should NOT ask questions of an applicant that are personal in nature, have nothing to do with the job, and/or are based on protected classifications (age, race, religion, disability, etc.).
If you use a form job application, you should check to ensure that you are not asking any illegal questions on that application. Do not assume that just because you got the application from someone else that it is proper. Check it. The most common illegal question on a job application is asking the date of graduation from high school, which is an indicator of age. Interestingly, you may ask for graduation dates for college or graduate school. Your application should not include the following: Sex; Height; Weight; Eye Color; Hair Color; Year You Graduated High School; Are you a U.S. Citizen?. These things are almost never related to job performance and can be viewed as indicators of certain people and, thus, have been deemed to be discriminatory. Additionally, there are some new limitations in place regarding whether you can ask an applicant about criminal convictions – specifically, the City of Philadelphia passed a law making it illegal for an employer to ask about criminal convictions prior to an interview. While employers in the rest of the state may still ask that information on a job application (as well as during an interview), this is an area to keep an eye on, as the law is constantly changing.
Most applications also have a place for the interviewer to write down notes from an interview. These are commonly used improperly by people who are not trained to interview. The interviewer should only write down job-related information in this section, answers to particular questions, etc. This area should not be used for comments about what the applicant looked like, what they wore or any other non-job-related information.
When conducting an interview, there are a number of areas to avoid. Some illegal questions for an interview include: How old are you?; Are you married?; Are you pregnant?; Are you planning on becoming pregnant soon?; Do you have any children?; What do you do about child care?; Are you a U.S. citizen?; What is your religion?; Where do you belong to a church?; What is your heritage?; Are you disabled?; Have you ever filed for bankruptcy?; and What memberships do you hold in social, religious and community groups?
Many times an employer can get the information it needs by simply rephrasing certain questions. Instead of asking an applicant how old they are, simply ask if they are at least 18 years old (this is a legal question because whether someone is 18 allows an employer to know whether child labor laws apply). Also, it is best for an interviewer to ask open-ended questions, such as “Would you please tell me about yourself?” This allows the applicant to offer information instead of having the employer trying to solicit the information, which is permissible under the law.
Legal questions for an interview include: Are you at least 18 years old?; Are you legally eligible to work?; Tell me about yourself.; Where have you worked before?; What duties did you perform at your past job?; What special qualifications do you have for this job?; Do you have responsibilities or commitments that will prevent you from meeting specified work schedules? If so, please explain.; Do you anticipate any absences from work on a regular basis? If so, please explain.; and Will you be able to carry out in a safe manner all job assignments necessary for this job?
By avoiding the illegal interview questions, employers can also work to prevent failure-to-hire discrimination cases in which an applicant alleges that he/she was not hired based upon improper factors, such as their age, sex, religion, etc.
Jeffrey S. Stewart is a partner in the firm of Norris, McLaughlin & Marcus, in Allentown, PA, where his practice focuses on representing companies with respect to all forms of labor and employment issues.