Hiring and the Law – What Questions Can You Ask?

We’re pleased to introduce a new feature to our readers.

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, will be 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: Why can’t I ask certain questions in a hiring interview if I want to know all I can about my prospective employee?

Answer: 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, pregnancy, citizenship, and genetic information.  States, however (and even some localities) protect broader categories, for example, 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 a litigation.  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.

*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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