It is not uncommon for an employer to realize, after the fact, that an employee conducting a job interview asked a question that put the organization at risk for a discrimination claim.
If you make such a discovery, do not panic. Rather, actively move to remind and, if necessary, retrain interviewers to avoid inappropriate questions. The right response to a close call can help prevent costly lawsuits and the accompanying negative publicity.
No wiggle room
As you are no doubt aware, the Equal Employment Opportunity Act of 1972 and other federal laws and regulations enumerate many factors that you cannot legally consider when hiring. These include race, color, religion, gender, marital status, sexual orientation, pregnancy status, national origin, age (over 40), disability, and genetic information.
In most cases, interviewers do not walk into meetings intending to discriminate against an applicant. Improper questions often occur when employees think they can wiggle around prohibited questions to get information that they believe will benefit their employers.
For example, instead of asking an applicant what their religion is, an interviewer might ask something like, “Will you need time off for any religious holidays?” This may be a legitimate question, but it could still be viewed as an effort to identify the applicant’s religious tradition. A litigious applicant could argue that your organization had discriminatory intent even if you did not. In the same way, asking for the dates an applicant received educational degrees could be interpreted as an effort to determine their age.
Federal government agencies are prohibited from asking job applicants about their political affiliations. Although it is generally not illegal for private employers to do so, it is wise to avoid this thorny topic when interviewing applicants. For instance, an applicant could view an interviewer who makes a negative or positive comment about a controversial political figure as asking a ‘question in disguise’ to filter out those of certain political affiliations. A lawsuit could soon follow.
Issues & risks
Of course, avoiding questions that could open you up to a discrimination complaint does not mean you must limit yourself to old standbys, such as, “What are your biggest strengths and weaknesses?” and “Where do you see yourself in five years?” You need to go beyond the usual banter to learn enough about an applicant to make a wise hiring decision.
Unfortunately, this is precisely where many interviewers get themselves and their employers into trouble. Work with your attorney to stay apprised of the latest compliance issues and risks. Meanwhile, our firm can help you assess the financial impact of your hiring efforts.