Because an employer’s conduct during the interview process can expose it to liability, it is crucial to understand the types of questions that can and cannot legitimately be asked of an interviewee. The litmus test for an interviewer is generally to ask himself/herself: What do I really need to know about
this applicant to decide whether he or she is qualified to perform the job?
Therefore, questions about an applicant’s sex, age, health, marital status, veteran status, children, religion, future family plans, sexual orientation, past workers’ compensation claims (or any protected classification) should all be avoided. Those persons who undertake face-to-face employee interviews must be trained about the types of questions that may not be asked during an interview. This training should include providing the interviewers with a list of topics that should not be asked during the interview and avoiding improper questions.
(Helpful Interviewing Tips)
The effective interviewer usually incorporates the following elements into the interview:
• The interviewer should know the job requirements and hiring process and be uniquely aware of the difference between “essential” attributes and “desirable” attributes.
• Prior to the interview, review the candidate’s application and plan for the interview. Ask the applicant to fill in the gaps of the job history and explore the reasons he or she left prior employers. Also, do not make any misleading statements or unintended promises about the job or the company.
• Ask open-ended questions and follow-up on any relevant issues.
Moreover, in the interview you want to observe the candidate’s body language.
• Plan a smooth closing. Thank the applicant for his or her interest in the job and get any follow-up information that may be needed. Tell the applicant that the director of human resources, or other applicable person, will contact the applicant about his or her decision.
• The bottom line is that the job interview is also the first significant contact with the potential employee. Therefore, the interviewer should positively promote the image of the company.
• When an interviewee volunteers information about an “off limits”
topic, such as his or her children or family plans, don’t follow up, write it down, consider it or share it with other employees making the hiring decision.
Attached to the Appendix of this Toolkit as Exhibit 2 (Pages 148-149) is a non-exhaustive list of legitimate work-related questions that can be asked of an applicant during the interview process.
(Avoiding ADA Pitfalls)
The Americans With Disabilities Act (ADA) requires that inquires about disabilities be made in two separate stages of the hiring process. The questions you may ask before an offer is made differ from what you may ask afterwards.
For example, before an offer is made, questions cannot be asked about the nature or severity of the disability; the condition causing the disability; any prognosis or expectation regarding the disability; or whether or not the person will need treatment or special leave because of the disability. Therefore, when interviewing applicants (including those with disabilities), make the most of your interview by: (1) asking whether the person knows of any reason that he or she cannot perform the essential functions of the job; (2) describing or demonstrating an essential job function and asking applicants whether or not they can perform the functions with or without a reasonable accommodation;
(3) asking questions regarding ability to perform all job functions, not just those essential to the job; (4) providing information on the company’s regular work hours, leave policies, absence policies, and any special attendance standards for the job, then asking the applicant if those work/attendance requirements can be met.
Remember that although the ADA allows you to ask an applicant with a visible disability to describe or demonstrate how he or she will perform specific job functions, the applicant’s performance of non-essential functions cannot be used to eliminate him or her from consideration. Again, the focus must be on the applicant’s performance of the job’s essential functions.
(Avoiding Other Pitfalls)
It is also unlawful to discriminate on the basis of an applicant’s race, ethnic group, genetic information, or other protected classification. Consequently, asking about or merely mentioning any of those protective subjects could be considered discriminatory if it puts the applicant at a disadvantage or you cannot show that the inquiry is related to a bona fide job requirement. For example, legal problems can result if you solicit information about clubs or social organizations to which the applicant belongs and indicates the applicant’s religion, national or ethnic
religion, race or color. Additionally, asking about an applicant’s feelings about working with people of different races, asking about an applicant’s birthplace, asking an applicant’s maiden name or any inquiries regarding the applicant’s marital status, number and ages of children, and questions about any other protective classification should be avoided during the interview process. Under the Genetic Information Nondiscrimination Act, it is now unlawful to ask an applicant or employee about their family medical history or any genetic diseases for which the applicant or employee believes he or she might be at risk. The Illinois Human Right Act even makes it unlawful to inquire about, or use arrest information, as a basis to refuse to hire. Therefore, questions about an applicant’s arrest record or convictions should be avoided.
Attached to the Appendix of this Toolkit as Exhibit 3 (Pages150-151) is a non-exhaustive list of questions that should be avoided during the interview process.