There are grave legal implications of job interviews. The interview leads to your decision to pass over one person in favor of another: In today’s litigious society, you risk resentful retribution from the person who feels you’ve judged him personally.
The Job Interview: Just One Person Can Be Chosen
The interview process puts you in the position of saying yes to one person. By doing so, you are saying no to everybody else who hoped to be chosen. The past several decades have seen us become an increasingly litigious society, and the past couple years have ratcheted up people's worries about their ability to earn a living. When you turn someone down, you can’t just tell them it’s not personal, because it is really quite personal.
The candidate’s thoughts run the whole gamut of reasons for not being chosen: Everything from halitosis to religious orientation to ethnicity to age to family size goes through a person’s mind. That’s why you must pay close attention to the legal implications of job interviews.
Give All Candidates the Same Interview
It’s absolutely true that every interviewer has jaw-dropping experiences with applicants. My own situations have included a woman who brought her bible to the job interview “because God will tell me where I'm going to work." I had a man tell me the entire story of his wife’s prolonged illness and passing—and how he fell in love with his wife’s sister during the process. Countless people have shown up in summer casual clothes only to assure me that they’ll get dressed up “for the real interview." And I’ve had to ask a couple people to please put away the cell phone.
Every time you experience one of those situations, you have to offer the candidate the same courteous attention and access to the application process as every other candidate. You cannot omit giving someone the safety quiz, for example, because you think he looks too old to work in construction. You never know when someone is going to complain to their case manager at the unemployment officer or even file a complaint with the Equal Employment Opportunity Commission (EEOC). When a complaint or lawsuit is filed and you don't have your ducks in a row, it might be cheaper to pay a claim than to fight it. You’re better off going into these situations fully cognizant of the legal implications of job interview.
The EEOC Gets Involved
The federal government’s EEOC readily puts information into the hands of disgruntled applicants. They are able to file a complaint if they feel they have been discriminated against for “race, color, sex, religion, age or disability" or if the person believes that he was not hired because he opposed a practice or policy, including safety guidelines, of the company. They can also complain if they contend they were passed over because of nationality, genetic information or pregnancy. Employers also risk a lawsuit when checking into a person’s past history of workmen’s compensation claims or prior filings of discrimination, including sexual harassment complaints.
To file with the EEOC, applicants must file within 180 days for complaints alleging violation of Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) or age discrimination. Keep in mind, however, that lawyers who see any possibility of a fruitful lawsuit will accept clients without regard to those timeframes.
You tread a dangerous line when you discuss:
Physical disabilities. If the job requires lifting 50 pounds, you cannot suppose from someone’s physical appearance whether he can meet that requirement. You can only tell him that the requirement exists.
Religion. It’s illegal to ask an applicant which day he celebrates his Sabbath. Never ask casual questions such as “What church do you attend?"
Age. You can only ask someone if she is over the age of 18. Laws address discrimination specifically between the ages of 40 and 70, but people can file complaints if they believe they were considered to be too old—or too young.
Race and Ethnicity. It’s illegal to ask someone what country he’s from. You can only ascertain his citizenship or visa status.
Marital or Parental Status. Never ask someone questions about her home life or children. Many interviewers leave photos of their kids on display hoping an applicant will offer information about her own family—but the interviewer cannot ask. If you do elicit family information, don’t assume you can plunge in with more questions. Silence is golden.
Criminal background and credit inquiries can be part of your background check as long as you get an applicant to sign off on the process, but do not ask about those areas. Arrests are not valid reasons for turning someone down—only actual convictions count, if they would negatively impact your corporate culture or the person's job duties.
What to Expect
When someone files a complaint, you will receive a letter from your state’s EEOC officer. The investigator will launch a broad-based inquiry asking questions about employee demographics. You may be questioned about applicants or employees across multiple categories of potential discrimination. (If you haven’t established a sound diversity program, now is a good time to do it.)
It’s best to prepare a list of interview questions that simply evaluate a person on the basis of his behavior, creativity, versatility, and general knowledge. The Society for Human Resource Management (SHRM) offers a categorical list of questions that you can ask with confidence.
Resources & Credits
U.S. Equal Employment Opportunity Commission (EEOC). Filing a Charge. Retrieved at http://www.eeoc.gov/facts/howtofil.html
Read also: Society for Human Resource Managemen. Sample Interview Questions, at http://www.shrm.org/TemplatesTools/Samples/InterviewQuestions/Pages/default.aspx
screenshots of EEOC intake forms taken by the writer