Why can’t I ask certain questions in a hiring interview if I want to know all I can about my prospective employee?

February 10, 2016

Topics: Hiring and Recruiting

Of course employers want to ask many questions, and use other evaluation tools, to find out all they can about their prospective employees.  Having sufficient information enables employers to make sound hiring choices.  However, employers are legally obligated to make hiring decisions based on business reasons:  work history, education, experience, work-related skills, special training, etc.  In those areas—ask away.  Gather as much information as you need about your candidate’s experience and job history.  A problem arises when interview questions ask about, or infringe upon, an applicant’s “protected characteristics.”  Questions that ask about these characteristics, which are covered by the non-discrimination laws, should not be asked.

On a national level, these categories include:  age, race, color, gender, religion, national origin, disability, citizenship, and genetic information.  States, however (and even some localities) protect broader categories, for example, pregnancy, sexual orientation, arrest record, familial status, political affiliations, etc.  Know the categories that apply to your area.  Without regard to the categories that apply, however, it is good business practice to base your hiring decisions on business-related reasons.

The reason I generally recommend to our clients that they not ask questions related to any protected category, even if they do not plan to use that information in the hiring process, is for the client’s protection.  In theory, if the business does not know, for example, the applicant’s national origin, it cannot discriminate on that basis.  If an applicant claims he or she was not hired because of a particular category, but the people making the hiring decisions did not know that the employee fell into that category, that creates a hurdle for the applicant to overcome in any litigation the employee might bring.  The applicant will need to prove that the company knew.  Additionally, interviewers who ask even apparently innocent interview questions can run afoul of the non-discrimination laws and get the business involved in an unnecessary lawsuit.

Here’s an example:  An Hispanic interviewer asks an applicant with an Hispanic surname what country her family comes from, perhaps, looking for something in common.  However, national origin and ancestry are protected categories that cannot play a part in hiring decisions.  If this applicant does not get hired, she could claim it was because of her national origin, based only on the fact that the interviewer asked.  That doesn’t mean that such a claim would be successful, but likely the company would rather not spend the time and money defending against such a suit. For that reason, it is best not to ask about these areas.

If it is not business related, and deals with a protected category, don’t ask it.  In some states, asking questions that address these “protected categories” is illegal. In others, it is merely ill advised. Rule of thumb?  Keep interview questions focused on business related issues to determine whether this particular applicant is qualified to do the job.