Pre-employment landmines: Questions to avoid

This article is based upon the Employment Interviews Best Practices Checklist, one of more than 65,000 resources available through Practical Law and Practical Law Connect.

When it comes to the pre-employment interview, many seemingly relevant or innocent questions can be legal landmines and expose companies to legal action.

This is especially true given that specific legal requirements differ across jurisdictions, there are many “grey areas” within these laws, and these laws are constantly evolving. One example is laws barring salary history information on applications. These salary laws have been enacted in response to pay equity initiatives and are a part of a larger trend to remove other information categories from employment applications.

This article highlights key questions to avoid and offers best practices to help you reduce risk to your company.

Avoid any question that might reveal the age

Avoid eliciting information about a candidate’s age, including:

• Asking for dates of college attendance or graduation
• Suggesting the candidate is overqualified
• Asking how the candidate would manage millennials or deal with a younger boss

Avoid questions related to disabilities

You can ask about a candidate’s ability to perform specific job functions, but not about their inability to perform those functions, whether they have a disability or the nature or severity of a disability.

You may ask whether the candidate can:

• Perform specific job functions
• Satisfy the company’s attendance requirements
• Perform the essential job functions with or without reasonable accommodation

Don’t ask about religion

Use care when asking questions that may reveal information about a candidate’s religion, such as their ability to work on weekends or their willingness to adhere to grooming and dress codes. Ensure the questions are reasonably related to business necessity and job requirements.

Avoid questions that reveal national origin or citizenship

Don’t ask about a candidate’s birthplace, accent, their family background, or whether the candidate is a citizen.

However, it is permissible to ask:

• If the candidate is legally authorized to work for the company in the US
• If the candidate requires sponsorship for an employment visa now or in the future
• About the candidate’s fluency in a particular language if required for the position (a requirement which should be in the written job description and job posting)
• You cannot, however, ask how or where they learned to speak or read the language

Do not ask about family status

Avoid asking about a candidate’s marital status, children, or caretaker responsibilities. Ask instead, if the candidate can travel extensively – but only if it’s required for the position.

Avoid asking about gaps in employment

You are, however, generally free to ask about the circumstances surrounding employment separation. For example, do not ask a candidate what they were – or have been – doing during periods of unemployment. Instead, ask why the candidate left a job or employer.

Don’t ask questions about lawful outside activities

Avoid asking about outside activities or organizations unless participation is relevant to the job.

Asking about a candidate’s involvement in outside activities may:

• Reveal information about the candidate’s religion or disability
• Violate state or local law prohibiting employers from considering lawful outside activities absent a conflict with the company’s business interest

Some questions you can ask

Appropriate questions you can ask include:

• Leadership positions in academic or professional organizations if relevant to the job.
• Questions that confirm job-related information provided by candidates, including their education, past employment, licensures and certifications

What we’ve provided here merely scratches the surface of all the possible legal landmines within the hiring process. In addition to keeping abreast of all the legal issues affecting the hiring process, it is also wise to consult with your human resources department.