By Richard E. Ensman, Jr.
YOU TRY HARD TO FIND good employees. And you probably invest many long hours in recruiting and interviewing sessions before you make your hiring decisions. So, suppose during a routine employment interview, you ask innocently a prospective employee about a social club he belongs to. For whatever reason, you decide not to hire this person for the opening. Two months later, you find that he has filed a complaint against you for ethnic discrimination. The social club, it seems, is composed of individuals of a particular ethnic backgroundโand the prospective employee is convinced that your employment decision was based on personal prejudices against this ethnic group.
You can probably recite many of the careful, probing questions you should ask job applicants by heart. But can you spell out the questions you should avoid? Here are 20 questions and statements that could pose potential risk for youโquestions any employer asks at his or her peril:
- How old are you?
Age discrimination is illegal. If you ask a prospective employee his or her age, the individual can assume that youโre going to use this information in your hiring processโand if the decision does not come out favorably for the individual, he may have reason to file a discrimination complaint. - Where were you born?
Discrimination based on race or ethnic origin is also illegal. Now, federal law may well require that you document the citizenship of employeesโbut you can do this only after an employee has been hired and placed on the payroll. - What kind of salaries did other women in your position make in the company you’re leaving?
Here are grounds for a potential case of discrimination based on gender. Any question suggesting that youโre differentiating between male and female job applicants might open you up to this charge. - What does your wife (or husband) do for a living?
The law generally requires that you hire individuals based on their qualifications and aptitudesโnot on the personal characteristics or background of family members. So questions about a prospective employeeโs marital status, spouse, relatives or children can get you into trouble. - How many exemptions will you be claiming on your tax form?
On the surface, this question may sound fine. But in practice, the question can be used to assess the size of a prospective employeeโs familyโsomething generally frowned upon in legal circles. True, an employee will have to complete a federal and possibly a state exemption form once hired. But this issue should be raised only after the employee has been hired. - And how old are these children?
How did you find out about the prospective employeeโs children? Was it noted on the applicantโs resume? Did the applicant make a chance comment about her children in the interview? Even if the prospective employee brings up the subject of her children, donโt pursue it. - How healthy are you?
This is a vague and potentially misleading question. Youโre certainly safe in asking whether a prospective employee has any health impairment or disability which would prevent him or her from performing the jobโbut thatโs it. - What organizations do you belong to?
Another tricky question. If youโre hiring a professional employee, youโre probably within bounds asking whether the individual belongs to professional societies or trade associations. But donโt pursue any line of questioning that might force an individual to reveal social, ethnic or racially based organizations to which he or she might belong. Discrimination complaints can easily arise from those questions and the conversations that result. - What political party do you belong to?
Donโt ask. - Where do you go to church?
Still another โbad newsโ question. The law generally prohibits discrimination based on religious affiliation. - Have you ever been arrested?
Another bad question. Youโre free to ask a prospective employee whether he or she has ever been convicted of a crimeโand you may well have the right to use that information in making your employment decision. But, because an individual is innocent until proven guilty in the country, youโre generally not free to use an individualโs arrest record in making an employment decision. - What extracurricular activities were you involved in while you were attending school?
This is another tricky question. Extracurricular activities can give you an idea of an individualโs leadership abilities, aptitudes and professional interests. But if the discussion begins to focus on organizations that are closely tied to a prospective employeeโs social or ethnic background, be wary. - Do you like your neighborhood?
You can ask an applicant if he or she can get to work in the morning, but to use the individualโs place of residenceโor his feelings about that place of residentโin an employment decision can lead to trouble. - How do you feel about working for a probationary period?
If you require employees to work a โprobationary period,โ be up front about this during the employment interview. If youโre not explicit about this policy or if you open it up to discussion, the individual may assume that no probationary period exists โ and if you decide to terminate the employee later on, you may unwittingly lead him to believe youโve violated his contractual rights. The โprobationary periodโ concept is, incidentally, troublesome; avoid it unless youโve run your policy by a knowledgeable attorney. - Will you need time off for child care?
Do you allow employees to take time off for child care? Or for sick leave? Or for personal leave? If so, you shouldnโt be discussing this issue during the employment interview; the individual will be eligible to use whatever benefit you offer once employed anyway. The real problem here: you could be initiating a discussion about the prospective employeeโs family background. - Do you know John Smith (or Jane Doe)?
Personal networking questions can lead you into a discussion of an individualโs personal background. Unless youโre speaking with a prospective employee about his or her references, steer clear of this type of question. - There’s a good chance you’ll get a raise in six months.
What does a โgood chanceโ mean? If you suggest or imply that a raise will be forthcoming six months down the line, the employee may well believe that a raise is part of the employment package or contract. - We’ll probably be improving our benefit package in the near future.
Likewise, if you suggest that a prospective employee might be getting an improved benefits package shortly after hiring, the individual might have reason to believe that he or she is contractually entitled to receive new benefits. If you have a formal benefits program or personnel handbook, youโre best to limit your discussion to benefit policies that exist right now. - I think you’ll eventually get the knack of the job.
If you have doubts about a prospective employeeโs competence, but you still wish to hire the individual, be sure you agree to specific performance criteria before you bring the individual on board. If you imply that the individual will โprobably get the knack of the job,โ and he doesnโt, you may be headed for trouble later onโunless youโve mutually agreed to clear expectations at the time of hiring. - I’d like to give you a promotion in the near future.
Is an automatic promotion part of your employment package? Anything you mention or offer during the interview or hiring process might be interpreted as a contractual entitlement. Be careful.
To steer clear of trouble, avoid questions or discussions about a job candidateโs personal background. Limit your questions to his or her skills, experience, education and professional goals and interests. And stay away from discussions of benefits or entitlements that youโre not specifically promising when you hire.
Chances are you spend much time trying to find, hire and train the best employees you possibly can. Armed with carefully planned interview questionsโand knowledge of the doโs and dontโs of employment interviewsโyouโll be able to find and hire those top-notch employees. And in the months and years ahead, you may never have to experience the unpleasant outcome of a hiring interview gone wrong.
