by Jeffrey Frankel, Vice President of Marketing for Traliant
Demand for skilled workers is strong − there were 65.3 million hires in 2017. While that’s good news for employers and job seekers, an increase in recruiting can also increase the risk of HR and hiring managers asking interview questions that may violate federal, state or local anti-discrimination laws.
A simple rule to follow is to keep the questions job related, not personal. This includes pre-employment questions that ask about a candidate’s age, race, gender or sex, country of national origin, religion, disability, marital or pregnancy status, and other categories protected under the laws enforced by the Equal Employment Opportunity Commission EEOC.
Whether you’re trying to hire seasonal help, part-time workers or full-time staff, here are five questions to avoid as you navigate through the hiring process:
1. “We’re a family friendly company. Do you have any kids?”
Asking a candidate if they are married or how many children they have is often used to discriminate against women, and may violate Title VII of the Civil Rights Act of 1964 if the questions are used to make hiring decisions.
Regardless of a candidate’s gender, it’s a good idea to stay clear of asking whether they have kids or plan to start a family soon. A better question – which is more relevant to the job – is to ask if they are available to work overtime or if they can travel overnight on occasion.
2. “You’ve got a lot of great experience. How long have you been working?”
Denying a job to a qualified candidate because of his age recently cost an IT staffing company $50,000 to settle an age discrimination lawsuit brought by the EEOC. The company violated the Age Discrimination in Employment Act (ADEA) after emailing the applicant that he would no longer be considered for the position because he was “born in 1945” and “age will matter.” The ADEA prohibits employment discrimination on the basis of age, including discrimination in referrals by employment agencies.
When in doubt about whether an interview question is appropriate or legal – such as “what year did you graduate?” – ask yourself if the question could raise doubts about your motives or the motives of your organization. And when advertising for job openings, be sure to carefully review the job descriptions and eliminate code words like “digital natives” or “recent college graduate” These terms are perceived to screen out older candidates.
Two ways that can help organizations address the persistent problem of age discrimination and stereotypes are to 1) include age discrimination in your diversity and inclusion training program, and 2) talk openly about age bias with staff, hiring managers and co-workers.
3. “What kind of name is that?”
Asking candidates about their accent or commenting on their “unusual” name can lead to a costly claim of national origin discrimination. For recruiters and hiring managers, this means avoiding questions about (and basing hiring decisions on) an individual’s place of origin, accent or ethnic group.
Other ways to reduce the risk of national origin discrimination in your hiring process is to use a variety of methods of recruiting to attract diverse populations, and then ask all candidates the same interview questions.
The EEOC also cautions against relying too much on word-of-mouth recruiting, which can result in people referring candidates within their own ethnic group.
4. “We’re closing the office on Good Friday. What are you doing for Easter?”
Asking questions about someone’s religion, such as what church they go to and what holidays they observe, can also make you a target for a discrimination claim. Instead of asking candidates about their beliefs, find out their availability and whether they have any scheduling conflicts. For example, can they take a shift on a Saturday or Sunday, if needed?
And if qualified candidates and employees request flexible schedules or time off for religious holidays, organizations are required to consider all reasonable accommodations, as long as it doesn’t cause undue hardship or expense.
A logistic company learned this lesson earlier this year when they revoked a job offer to a candidate, who asked to postpone his start date because he could not work on Rosh Hashanah, the Jewish New Year. Allowing the new hire to change his start date by one day did not represent an undue hardship for the company, the EEOC said, and charged them with religious discrimination. As a result, the company agreed to pay $94,541 and take other measures to settle the lawsuit.
If you have a policy that singles out a particular group, chances are it’s discriminatory. The best policy is to clearly communicate that your organization respects the religious beliefs and practices of all employees, and treat each request or situation individually.
5. “We’re a noisy shop. How’s your hearing?”
Disability discrimination in the workplace has been illegal under the Americans With Disabilities Act (ADA) since 1990. However, it’s more common than you may think. Disability discrimination accounts for almost 32% of all EEOC charges filed in fiscal year 2017. Only retaliation (48.8%) and race discrimination (34%) charges are higher.
In a recent EEOC case, a manufacturing and distribution company agreed to pay $50,000 for refusing to hire an applicant because of his hearing impairment. After the deaf candidate applied for a warehouse position, the site manager emailed him to schedule an interview. However, when the candidate came in, the site manager canceled the interview, and then sent a text message saying there was no job they could offer him that would be safe.
The company could have avoided the ADA violation by asking the deaf candidate if he could perform the essential functions of the job safely – with or without a reasonable accommodation. A good rule to follow is to focus on the candidate’s abilities, not their disabilities and consider all reasonable accommodations to ensure that applicants with disabilities receive fair and equal treatment in the hiring process.
Mind your Qs.
These are just a few examples of interview questions can get organizations in trouble or lead to discrimination claims. It’s a good idea to regularly check whether your state has other requirements for what you can and cannot ask job seekers. The goal is to treat all candidates fairly and ensure your interview questions, job descriptions, advertisements and other recruiting and hiring efforts do not discriminate or show bias for or against any particular group of individuals.
Jeffrey Frankel is the Vice President of Marketing for Traliant. He is responsible for all aspects of Traliant’s marketing, including demand generation, brand awareness, communications and thought leadership. Jeff has more than 20 years’ experience in accelerating company growth through strategic marketing, including digital and traditional channels.
