Articles - Compliance and Legal

What do you advise your candidates to do when they are asked seemingly illegal questions during an interview with your client?  Have you prepped them in advance as to the appropriate way to answer?  After all, you don’t want them jumping out of their chairs in horror!

There are a number of state and federal laws which prohibit discrimination based on certain “protected” characteristics.  This article will focus on some of the federal laws.   You should research your own state laws.  It is highly recommended that you get legal assistance before making any legal recommendations to your candidates.  However, you should talk to your candidates about what questions may be asked and how to appropriately answer them.

The job interview should focus only on job related issues in order to eliminate any possible claims of discrimination.  However, despite our best intentions, these popular topics may come up:

1.  Citizenship

Your candidate should not be asked about their country of citizenship.

The client may ask if the candidate is a U.S. citizen.  If the candidate is not a U.S. citizen, they may ask if they have a valid employment authorization.  As their recruiter, you should already know if they have valid employment authorization because if they are unable to get valid employment documents, you should disqualify them from consideration.

2.  Political Beliefs, Race, Sex, Religion, Marital Status, National Origin, Non-job Related Disabilities, Number of Children and Family Planning

These are all supposed to be prohibited factors in making a hiring decision.  Your candidate should never volunteer information regarding anything personal.  Many companies are now taking the position that any potentially illegal information received will disqualify your candidate from consideration, regardless of their skills and qualifications.  As long as they apply that standard to every interview, it is a valid reason to exclude your candidate.  So warn your candidate not to volunteer any personal, protected information.

3.  Age

With the exception of compliance with child labor laws, unless there is a specific, job- related reason to know, your client is not suppose to ask your candidate’s age or date of birth.

4.  Arrests

Your client should know that they may not ask about arrest records.   They can, however, ask about convictions.  You should know if your candidate has ever been convicted of a crime.

Before Your Candidate Files a Claim for Discrimination

You may want to have a conversation with your candidate before their interview about the possibility of being asked illegal interview questions.  Have them consider that most hiring managers do not ask questions with the intent of being discriminatory.   Most often, they are looking for legitimate information but have made a very poor choice of words or in the case of an inexperienced hiring manager, they may simply be ignorant of the law.

Review with your candidate the most commonly asked illegal interview questions and determine what the hiring manager is really trying to learn.  Then prep your candidate to answer the ‘real’ question without raising the issue of the poorly chosen verbiage of the original question.

Filing a Claim for Discrimination

If your candidate really believes that they have been discriminated against when applying for a job, they may file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).

Common Illegal Interview Questions are:

• Are you a U.S. citizen?
• Where were you or your parents born?
• Is English your native language?
• How old are you?
• When did you graduate from high school/college?
• When is your birthday?
• Are you married?
• Who do you live with?
• Do you plan to have a family? When?
• How many kids do you have?
• What are you child care arrangements?
• How much do you weigh?
• Do you have any disabilities?
• Have you had any recent or past illnesses or operations?
• Are you planning any medical procedures?
• When was your last physical examination?
• What is your family’s health history?
• Have you ever been arrested?
• Were you honorably discharged from the military?

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BIOGRAPHY

Diane Skullr, CTS, CSP, CERS is the Founder and Managing Director at Infoployment, a Job Search and Interview Information Services company. She is nationally recognized as a Certified Employee Retention Specialist and currently serves on the Board of Directors for the National Association of Personnel Services (NAPS) where she is co-chair of the membership committee. She has over 20 years of successful staffing and recruiting experience and has owned and managed a health care staffing and search firm in California, until it sold in 2008. Diane Skullr can be reached at Infoployment. http://www.facebook.com/l/55984;www.infoployment.com 800-566-0953