Protecting your company from a lawsuit by a current or former employee is essential, and to do so, employers must create an environment free of harassment and discrimination. Hosting seminars, creating a detailed and up-to-date employee handbook, and educating employees about acceptable practices are all important steps to protecting your employees and your business.
However, all of these steps won’t protect you if you have improper hiring and interviewing practices. The moment you begin interviewing candidates for a potential job, you open the door to a discrimination lawsuit. It’s critical that the individual conducting the interview understand proper techniques and appropriate questions to ask. Even seemingly innocent or “polite” questions, like asking a candidate if they have children or a spouse, can become the basis for discrimination.
These Questions Are Off-Limits
Some might remember George Carlin’s seven words you can’t say on television. That bit became famous at the time but in today’s world would be looked at differently. That’s because as times change so do accepted practices in the eyes of society but also in the eyes of lawyers and our courts. We like to try and keep our clients out of the courtroom, so here’s a new list of questions that should never be asked during the hiring process. This is not exclusive by any means, but you get the idea.
- What is your religious affiliation?
- Do you have or plan to have children?
- What is your political affiliation?
- What is your race or ethnicity?
- How old are you?
- Are you disabled?
- Are you married?
- Are you in debt?
- Do you drink, smoke, or take prescription drugs?
So What Can You Ask?
Although avoiding some topics is the wisest choice, there are questions you can ask that will help determine if a candidate is the right fit for your organization.
- You may ask a candidate if they are available to work overtime or weekends, or if they can travel, but these questions must be relevant to the position.
- You may ask a candidate if they are fluent in the English language, but again, only if this is necessary to perform the position.
- You may ask a candidate if they are over 18 years of age, but you may not ask them for a specific age.
- You cannot refuse to offer a job to someone based on physical or mental disabilities, but you can ask if someone is able to perform the essential job duties. A word of caution here: Employers are required by law to accommodate disabilities unless it would cause significant difficulty or expense to do so.
- While you cannot ask about an applicant’s financial situation, some states do allow for credit checks as a condition of employment with the applicant’s approval. Be sure to check your local laws before asking.
- You can ask if a candidate has ever been disciplined for violating an employer’s policy on use of alcohol or tobacco products and you may also ask directly if the candidate uses illegal drugs.
Don’t Send Just Anyone to Interview a Candidate
Conducting an interview should not be a task thrown to just any employee. Skilled interviewers will possess the ability to find the best possible candidate without violating protocol. Planning ahead by preparing open-ended questions will get a candidate talking and a good listener will pick up on the details necessary to determine if the job-seeker is a good fit. The interviewer must also understand applicable discrimination laws and, before the interview, have developed a job description consistent with Americans with Disabilities Act (ADA) requirements that accurately defines the skills necessary to perform the job.
During the interview, consider having another person in the room rather than just the interviewer and the candidate. Take notes and maintain them separate from the application. If the candidate does offer up information you’d rather not know, do not include it in your notes or follow up on the information.
Consult the Experts
Having an organization free of discrimination and harassment is essential. Educating all employees on proper practices is only the first step; ensuring these practices are followed consistently is key. Consult an employment practice attorney to develop procedures and manuals to address these issues and facilitate compliance.
Sometimes, however, things still go wrong or you may need defense against a frivolous lawsuit. Your trusted insurance adviser can help you find the right Employment Practices Liability Insurance policy. It’s no substitute for careful planning and respectful treatment of all employees, candidates, vendors and subcontractors, but can provide you the peace of mind to know your business won’t go under if someone makes a claim against you.
All insurance policies are different. Be sure to review your insurance policy for specific information about coverages available to you. Nothing in this post is meant to suggest a guarantee of coverage.