Hiring and the Law – More On What Questions You Can Ask

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: If I only can ask job applicants “business related questions,” how can I ask them questions aimed at getting to know them better, such as what books they like to read or what they do in their spare time?

Answer: This is a good question and a confusion I see often in my practice.  Keeping interview questions “business related” does not mean that the questions must overtly deal with business related subjects.  What needs to be “business related” is your purpose for asking the question.

Let’s take the question about books the applicant likes to read.  If, for example, the job requires a lot of reading and absorbing information from books, articles, web pages etc., you would want to know if the person likes reading and can absorb information that way.  Some people don’t like reading for one reason or another and a job with a heavy reading component would not be a good match.  That would be a business reason for wanting to know if the person likes reading.

Of course, if the job has a heavy reading component, you could simply say that the job requires a lot of reading and ask if that would be a problem for the applicant?  Chances are, a candidate hungry for a job is going to say “no, it won’t be any problem.”  And you will not have learned anything about the applicant.

If, on the other hand, you asked the candidate “What book are you currently reading?” you can get a range of insight into your candidate—including whether he or she likes reading.

There may be many business reasons to ask this question. For example, the job being filled may require the successful candidate to be curious.  Maybe they would have a research and development role, or quality control, or loss prevention, or will handle internal investigations.  Such positions require people to be inquisitive and to keep “tugging on strings of information” until they resolve a problem.  Why is that? What about that? What if we try this?  Determining whether the candidate had a love of learning and reading and gathering knowledge could help identify whether the candidate has that required job qualification.

Asking about activities outside of work, such as reading or spare time activities, even though not “business related” on its face, is a permissible interview question and is not considered to be discriminatory because it not designed to obtain information about a protected category (race, age, religion, national origin etc.).  Of course, the same question needs to be asked of every applicant for the same job that gets to the point in the interview process when that question would be asked, so that all applicants for that job are treated the same.

It is possible that the applicant could respond with information that gave you insight into their religion (e.g., they spend their spare time volunteering for a Church group), or their national origin (e.g., they sing in the local Haitian choir), but nothing prohibits receiving information provided by the applicant.

Identify the business skills and qualifications you seek, and design your interview questions to provide information regarding those requirements.  By taking this step to prepare in advance, you provide your company with a layer of legal protection in the hiring arena.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

As the law varies in each area, please check with an attorney to ensure you are applying these tips within the law.

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