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Interview Questions - Appropriate or Inappropriate?
The word "appropriate" as used in the heading means that the question asked is justified by business necessity and the word "inappropriate" refers to a question that is asked that could give rise to a claim of illegal discrimination. Employment application forms and pre-employment interviews are the appropriate instruments for eliminating, at an early stage, unqualified or unsuitable persons from consideration for employment. However, applications and interviews can also be used to restrict or deny employment opportunities for individuals because of their race, color, religion, gender, national origin, age, disability, or marital status. These different classifications are called protected categories. It is inappropriate to ask pre-employment questions that may disproportionately screen out members of a protected category and are not valid predictors of successful job performance, or which cannot be justified by "business necessity." The guiding principal behind any question to a job applicant is: “Can the employer demonstrate a legitimate job- related or business necessity for asking the question?” Both the intent behind the question and how the information is to be used by the employer are important for determining whether a question is an appropriate pre-employment inquiry. The following is a representative list of questions with a short analysis after each question explaining why the question is appropriate or inappropriate. This list of questions is not all-inclusive.
This question is inappropriate for two reasons. First, questions regarding marital status, number of children and childcare arrangements are not appropriate because they may be seen as being based upon the applicant's gender. It is unlawful t deny a female applicant employment because she has children or is planning to have a child at some future date. Second, this question is an inappropriate way of asking about an otherwise appropriate subject: availability to work. Questions asked to availability to work should be job-related. For example: What hours can you work? What shift(s) can you work? Can you work on weekends and/or holidays? Are there specific times that you cannot work? Do you have responsibilities other than work that will interfere with specific job requirements such as traveling? You may not ask an applicant where he/she was born or where his/her parents were born. You may ask if the applicant is eligible to work in the United States. However, inquiries that either directly or indirectly disclose such information, unless otherwise explained, may constitute evidence of discrimination. When an English language skill is not a requirement of the work to be performed, and an employer uses an English language proficiency test or requires English language proficiency, an adverse effect upon a particular minority group may result. It is also inappropriate to inquire how an applicant acquired the ability to read, write or speak a foreign language. However, if the job requires additional languages, an employer may legitimately inquire into languages the applicant speaks and writes fluently. Courts have ruled minimum height and weight requirements to be illegal if they screen out a disproportionate number of minority group individuals or women, and the employer cannot show that these standards are essential to the safe performance of a job in question. You can ask about the type of discharge on the employment application for the purpose of determining eligibility for veteran’s preference. However, this question deals with asking about the type of discharge during the interview process especially when follow-up questions are asked about the discharge. The Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), the Veteran's Administration (VA) and the Department of Labor (DOL) positions are as follows: The EEOC asks the question "Did you receive an Honorable or General Discharge?" This is to ascertain Veteran's Preference status. The OFCCP suggests that it is best practice to only ask a question to ascertain Veteran's Preference status. Further, the OFCCP explained that it is "best practice" not to ask about type of discharge in the interview process as it can lead to equal opportunity type issues. For example, if the discharge was for medical reasons, this information is revealed during the interview and the interviewer then begins asking about the medical condition. DOL’s position is that an employer should avoid questions about discharge during the interview unless business necessity can be shown. It should be noted that at USF, questions relating to Veteran's Preference are asked on the application and are processed through Human Resources. During the interview process you may ask whether or not the applicant has served in the military, the period of service, rank at the time of discharge, and the type of training and work experience received while in the service. It is appropriate to ask questions pertaining to military service or experience when they relate to the bona fide job requirements. For instance, if an individual is being interviewed for a job teaching bomb disposal techniques, and the applicant learned his or her trade in the military it is appropriate to ask questions about the training, whether or not the individual had practical experience in the field, etc. Although it seems a contradiction, on the one hand discouraging questions about military discharge, but on the other asking that question on the application, it is not. The questions on the application are used to ascertain one's Veteran's Preference Status. The questions during an interview are used to ascertain one's ability to meet the job requirement of a specific position, and therefore, questions concerning military discharge are rarely pertinent. To conclude, you can ask about the type of discharge during the interview process. However, the interviewer needs to versed enough in protected category concerns to know when the questioning should cease when the responses from the candidate stray into these areas. USF's Diversity and Equal Opportunity Policy prohibits discrimination against individuals on the basis of age. Requests that an applicant state his age may tend to deter older applicants, and may otherwise indicate discrimination based on age. Permissible purposes are limited to when age requirement or limit is a bona fide job application or is based on reasonable factors other than age. Requests for date of birth on the employment application are permissible, provided that an appropriate disclaimer is shown. In addition, any recruiting effort that is age-biased, or any question during the interview process that deters employment because of age is unlawful. There are no job-related considerations that would justify asking about religious beliefs or convictions unless your organization is a religious institution, in which case you may give preference to individuals of your own religion. In addition, inquiries as to the applicant's religion are also not an appropriate method of determining availability to work. Employers have an obligation to accommodate the religious beliefs of employees and/or applicants unless to do so would cause undue economic hardship. Thus, questions relating to availability for work on Friday evenings, Saturdays or holidays should not be asked unless an employer can show that the questions have not had an exclusionary effect on its employees or applicants who would need an accommodation for their religious practices and that the questions are otherwise justified. This question is not appropriate as a pre-employment inquiry. Consideration of an applicant's citizenship may constitute evidence of discrimination on the basis of national origin. The law protects all individuals, both citizens and non-citizens domiciled or residing in the United States against national origin discrimination. A person who is a lawfully immigrated alien, legally eligible to work, may not be discriminated against on the basis of his/her citizenship, except in the interest of national security, as determined under a United States statute or a presidential executive order regarding the particular position or premises in question. However, the question that can be asked is: "Are you eligible for employment in the United States?" The Americans with Disabilities Ace ("ADA") prohibits employers from asking disability-related questions to employment applicants. A "disability-related question" is any question that is likely to elicit information about disability. Under the ADA, an employer cannot lawfully ask an applicant whether he has a particular disability nor ask questions that are closely related to a disability. An employer, for example, generally may not ask an applicant whether the applicant will need reasonable accommodation for the job. An employer may not ask an applicant how many sick days he took with a previous employer; this question directly relates to possible disabilities. An employer may not ask an applicant about his worker's compensation history. A question of this nature is viewed as relating directly to the severity of the applicant's impairments. An employer may not ask an applicant about his current or prior lawful drug use. For example, an employer cannot ask an applicant, "What medications are you currently taking?" An employer may ask an applicant whether he can perform the essential functions of the job for which he is applying, with or without reasonable accommodation. Or ask applicants to describe how they would perform any and all job functions, as long as all applicants in the job category are asked to do this. When an employer reasonably believes that an applicant will not be able to perform a job function because of a known disability, the employer may ask the applicant to describe or demonstrate how he would perform the function. If the applicant has an obvious disability or voluntarily discloses a hidden disability to the employer, the employer may ask the applicant whether he needs reasonable accommodations and what types of reasonable accommodations he will need. For example, an applicant for a receptionist's position voluntarily discloses that he has diabetes and will need to take breaks to take his medication. The employer may ask the applicant questions about the reasonable accommodations he will need, such as how often he will need to take breaks and how long the breaks must be. An employer should inform all applicants of the essential functions of the position and of the employer's attendance requirements. The employer may then ask whether the applicant will be able to perform these functions and meet the attendance requirements. An employer may also ask about an applicant's attendance record with a prior employer. This question is not considered to be disability related, because there may be many reasons unrelated to disability why a person may not have met the attendance requirements of a previous job. An employer may ask applicants about current and prior illegal use of drugs. An individual who is currently using illegal drugs is not protected under the ADA. For example, an employer may ask the following of an applicant: "Do you currently use illegal drugs? Have you ever used illegal drugs? What illegal drugs have you used in the last six months?" These questions are not likely to tell the employer anything about whether the applicant is addicted to drugs. On the other hand, questions that ask how frequently the applicant has used illegal drugs are likely to elicit information about whether the applicant was a past drug addict. An employer may not ask questions that refer to past drug addiction. However, keep in mind before asking any of these types of questions if the question is job related. If it is not then the question should not be asked. An employer may ask an applicant questions about his drinking habits, unless a particular question is likely to elicit information about alcoholism, which is a disability under the ADA. An employer may ask an applicant whether he or she drinks alcohol, or whether he or she has been convicted for driving under the influence of alcohol. These questions do not reveal whether someone has alcoholism. On the other hand, questions about how much alcohol an applicant drinks or whether he or she has participated in an alcohol rehabilitation program are not permitted. Questions of this nature are likely to elicit information about whether the applicant has alcoholism. This is not an appropriate question. Under the ADA, the term, "psychiatric disability," includes mental impairments, such as any mental or psychological disorder including emotional or mental illness. It includes major depression, bipolar disorder and anxiety disorders such as panic disorder, obsessive-compulsive disorder and post-traumatic stress disorder. A mental impairment also includes schizophrenia and personality disorders. As with physical disabilities, an employer is not permitted to ask applicants any questions that are likely to elicit information about a psychiatric disability. A limited exception comes into play when the employer reasonably believes that an applicant has a psychiatric disability for which the applicant will require accommodation. Generally speaking, an employer can only reasonably believe that an applicant will need accommodation if the applicant discloses his psychiatric disability to the employer during the hiring process or if the applicant tells the employer during the hiring process that he will need such an accommodation. While this question may not be evidence of discrimination, interviewers should avoid questions of a personal nature. Personal questions are generally irrelevant to the hiring process, any may give rise to claims for invasion of privacy or sexual harassment. There should be some direct correlation between the information requested and the applicant's ability to perform the functions of the job for which he is applying. If there is not legitimate business purpose for a question, don't ask it. This type of question can be considered an indirect inquiry as to an applicant's age and may create an inference of age discrimination. While such a question does not inherently violate the Age Discrimination in Employment Act, a more appropriate approach is to simply ask the interviewee if he or she has a high school diploma or equivalent. The standard applies to all protected category groups and to all questions related to educational achievement, if if no job-related requirement or business necessity exists. While an employer may generally inquire as to the applicant's educational background, there must be some degree of relationship between the level of education required for the position and the job duties of the position. As phrased above, this question is unacceptable because it could be seen as seeking information that is not job-related and which could relate to gender, national origin, religion or other protected categories. It would be more appropriate to ask: "What professional or trade groups do you belong to that you consider relevant to your ability to perform this job?" This question would elicit similar information, but only to the extent that it is relevant to the job in question. This question could be seen as an inappropriate inquiry because it indirectly asks a female applicant to disclose information regarding her marital status. If you need to contact a former employer, you may, however, ask all applicants if they have ever been known by any other name. USF's Diversity and Equal Opportunity Policy prohibits discrimination based on race and color. Again, pre-employment inquiries concerning protected status are not considered violations of the law in and of themselves. However, this inquiry directly asks an applicant to disclose information regarding a protected characteristic, and, unless otherwise explained, may constitute evidence of discrimination. An employer may legitimately obtain information needed to create and implement an affirmative action plan, or to meet other government recordkeeping requirements, or even for the employer's own efforts to recruit minorities and/or women. The information should be kept separate from other employee records to ensure that it is not used to discriminate in making personal decisions. One means of collecting such data that has been approved by the courts is the use of a "tear-off sheet", which is an anonymous sheet that is separated from the application ad used only for purposes unrelated to the selection decision. If It's Not Job-Related -- Don't Ask Data on such matters as marital status, number and age of children, and similar issues, which could be used in a discriminatory manner in making employment decisions, but which are necessary for insurance, reporting requirements or other business purposes can and should be obtained if a person has been employed, not by means of an application form or a pre-employment interview. It is reasonable to assume that all questions on an application form, or any pre-employment interview are for some purpose, and that selection or hiring decisions are made on the basis of the answers given. When facing charges of discrimination, the employer bears the burden of proving that answers to al questions on application forms or in oral interviews are not used in making hiring and placement decisions in a discriminatory manner prohibited by law. The employer must establish that the questions do not seek information other than that which is essential to evaluation of an applicant’s qualifications for employment. It is, therefore, in an employer's own self-interest to carefully review all procedures used in screening applicants for employment, eliminating or altering any not justified by business necessity. This article is prepared in summary form and is not to be construed as legal advice or opinion on any specific fact or circumstance. |
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