Asking the right questions in an employment interview is similar to asking questions on voir dire. In voir dire you want information, but you must question potential jurors in a calming and non-embarrassing way. In a job interview you need to get information relevant to the job, but the questions have to be framed so that there is no discrimination or appearance of discrimination. This is even more important in these times of economic turmoil. Anyone with a job opening today will be flooded with applications. Applicants are more desperate and aggressive, with a resulting increase in claims of employment discrimination. You may find delivered the dreaded Equal Employment Opportunity Commission (EEOC) charge if you ask the wrong questions in an interview.
Because discrimination laws are typically dual-edged swords, and for example you cannot discriminate against either women or men, the Age Discrimination in Employment Act is unique. It only prohibits discrimination against persons age forty and older. You may discriminate on the basis of youth. Nevertheless, unless the question relates to job qualifications and concerns whether an applicant is too young or inexperienced, do not ask questions that show interest in an applicant’s age. “How old are you?” “What is your birthdate?” “When did you graduate from high school?” These questions are potential minefields for litigation. Be cautious. Even though the person may appear to be under forty years of age, cosmetic surgery and similar options are on the rise as people try harder to find employment.
Because of the traditional female role in childcare, family status is another forbidden zone of inquiry. Marriage, children, future family plans and the job of a spouse are all not relevant questions to ask in the hiring process. Even if it is obvious that an applicant may be in her last trimester of pregnancy, you may not ask about the pending birth or her future arrangements for child care. If an applicant volunteers that he/she has children, don’t ask any follow-up questions about it or make any comments, including written comments which are discoverable. Instead, tell the applicant of the required work schedule and then ask if the applicant is able to work those hours. You may certainly ask if the applicant can travel if the job will require it. While you may not ask about a spouse’s job, you may explain conflicts of interest and ask if the applicant has any potential conflicts. You may not ask about maiden names or name changes in order to avoid charges of gender discrimination. However, if you are ready to do a background check, you may ask if the applicant needs to give you any further information in order for you to verify prior employment and education.
You may not ask any questions during the hiring process about nationality and birthplace as they may be used as evidence of nationality discrimination. You may ask if the person is legally authorized to work in the United States, and if you hire the applicant, you then must obtain proof of authorization to work in the United States.
Asking about clubs and affiliations can be evidence of multiple violations of discrimination laws: political affiliation, gender, race, religion. Even if an applicant exercises poor judgment and lists affiliation in an organization that is not relevant to the job, you should not ask questions about it. It is not legitimate to hire, or not hire, someone because he/she is a Young Democrat, member of Oasis Baptist Church, or Junior League member. Information about membership in professional organizations is an appropriate qualification for employment. It is appropriate to give preference to a legal applicant who has been active in the local bar association, or to a probation officer who serves on a group dedicated to prevention of domestic violence.
Another forbidden zone of inquiry is a person’s health history or physical disability, even when the disability is evident. The only legal way to take disability into account is to explain the requirements of the job and then ask if the applicant can perform those requirements, with or without accommodation. If there is some question about the ability to perform actual job requirements, you may ask how the person intends to perform these specific duties. Absenteeism at a prior job due to illness may not be discussed and you should ask furnished references about an applicant’s illnesses or absenteeism. You may ask if there was a problem with time abuse, such as tardiness, patterns of taking time off in conjunction with weekends, or wasting time at work.
Without fear of liability, you may ask the applicant, if hired, how long he/she intends to work on the job. You may want to ask about future goals of the employee, because if your job won’t aid the employee in reaching those goals, you may not want to hire the person. Indiana is an at-will employment state and either employer or employee may terminate the employment if it turns out to be a bad fit.
Because there are so many questions that may be used against you as evidence of discrimination, it is always best to write your primary questions out in advance and ask the same questions to each applicant. To get a good feel for the applicant, you should ask questions, rather than supply information about the job to the applicant. For example, don’t attempt to describe for the applicant your office atmosphere, but rather ask an applicant to describe an ideal work environment.
The good news about the limits on questions to potential employees is that these types of questions are forbidden because they don’t get you what you want: a productive, energetic employee with good character who fits into your office atmosphere. Taking time to craft the right interview questions will not only protect you from discrimination lawsuits, but also help you to find the best employee.
Trial Courts can seek advice on employment law issues by contacting Brenda Rodeheffer directly at (317) 234-3936 or email her at