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 background—and 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 you—questions 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 you’re going to use this information in your hiring process—and 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 employees—but 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 you’re 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 aptitudes—not on the personal characteristics or background of family members. So questions about a prospective employee’s 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 employee’s family—something 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 employee’s children? Was it noted on the applicant’s 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, don’t pursue it. - How healthy are you?
This is a vague and potentially misleading question. You’re certainly safe in asking whether a prospective employee has any health impairment or disability which would prevent him or her from performing the job—but that’s it. - What organizations do you belong to?
Another tricky question. If you’re hiring a professional employee, you’re probably within bounds asking whether the individual belongs to professional societies or trade associations. But don’t 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?
Don’t ask. - Where do you go to church?
Still another “bad news” question. The law generally prohibits discrimination based on religious affiliation. - Have you ever been arrested?
Another bad question. You’re free to ask a prospective employee whether he or she has ever been convicted of a crime—and 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, you’re generally not free to use an individual’s 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 individual’s leadership abilities, aptitudes and professional interests. But if the discussion begins to focus on organizations that are closely tied to a prospective employee’s 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 individual’s place of residence—or his feelings about that place of resident—in an employment decision can lead to trouble. - How do you feel about working for a probationary period?
If you require employees to work a “probationary period,” be up front about this during the employment interview. If you’re not explicit about this policy or if you open it up to discussion, the individual may assume that no probationary period exists — and if you decide to terminate the employee later on, you may unwittingly lead him to believe you’ve violated his contractual rights. The “probationary period” concept is, incidentally, troublesome; avoid it unless you’ve 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 shouldn’t 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 employee’s family background. - Do you know John Smith (or Jane Doe)?
Personal networking questions can lead you into a discussion of an individual’s personal background. Unless you’re 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 “good chance” 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, you’re 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 employee’s 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 “probably get the knack of the job,” and he doesn’t, you may be headed for trouble later on—unless you’ve 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 candidate’s 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 you’re 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 questions—and knowledge of the do’s and dont’s of employment interviews—you’ll 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.
