The hiring process can be a stressful one, for employers and candidates alike. Employers wish to find the best candidate for the position, while also taking into consideration factors like diversity, cost, and cultural fit. Employers must also be cognizant that missteps they or their employees might take during the hiring process, particularly during interviews, can have an array of consequences – including discrimination claims, negligent hiring, or failure to accommodate. This article explains the laws surrounding the hiring and interviewing process and offers a few best practices (the “Dos”) and examples of behavior and questions that may expose employers to liability (the “Don’ts”).

Background

There are a number of federal laws that protect employees and applicants alike, based on several protected categories. These include Title VII (prohibits discrimination based on race, color, religion, national origin, and sex); the Americans with Disabilities Act (ADA); the Age Discrimination in Employment Act (ADEA) (forbids age discrimination against people who are age 40 or older); and others. Several states have enacted laws that create additional protected categories, including marital status, personal appearance, family responsibilities, political affiliation, matriculation, and reproductive health decisions. Asking an applicant questions, either on the application form or in an interview, that implicate any of these protected categories potentially opens an employer up to liability, if the question is not carefully phrased and job-related.

In employment discrimination cases, applicants may allege either that they were subject to intentional discrimination or that a particular hiring practice has a disparate impact on protected groups. A question that is neutral on its face regarding education, experience, physical characteristics, or credit information may weed out a disproportionately high number of applicants based on protected status and thus lead to a disparate impact claim. Therefore, all hiring practices and interview questions should be justified by a legitimate business purpose.

The Dos

Best practices that can mitigate an employer’s liability include creating and following a standard interview outline, training interviewers, using a standard evaluation form, and keeping all documentation used in the hiring process for at least two years.

To create a standard interview outline, employers should look at the job description and link all questions to relevant job qualities. This helps avoid “on the fly” questions that may open an employer up to liability and produces more reliable and relevant information that will help employers pick the best applicant. Creating this outline and using it in every interview also allows a valid comparison across all applicants and counteracts unconscious bias of interviewers.

While it is an excellent idea to bring a range of current employees into the interview process to get diverse perspectives and assess cultural fit, it is crucial that interviewers are trained. This will lead to a more successful recruitment process that attracts top talent and reduces the chance that an interviewer will say or do something that inadvertently opens the employer up to risk.

Training topics might include unconscious bias, illegal interview questions, technical interviewing skills, and how to create a great candidate experience.

During or after the interview, all interviewers should fill out a standard evaluation form that notes their impressions of the candidate. However, these notes should be limited to relevant information related to the job to avoid an inference that an impermissible characteristic was the basis of the hiring decision. This evaluation form and the standard interview outline should be kept for a minimum of two years, along with the candidate’s application form, résumé, reference checks, background checks, and any other documentation used in the selection process.

The Don’ts

The primary pitfall that employers run into during interviews is asking questions that solicit information about a protected category. Even seemingly innocuous questions that come up in small talk can pose problems. There are also differences in the information that an employer can solicit during the interview and application stage versus after they’ve extended a job offer. The following examples highlight the fine line between permissible and impermissible questions but are by no means an exhaustive list of issues employers should be cognizant of.

Some say the best interviews are the ones that flow like a regular conversation between co-workers or friends – and that certainly may be true. However, questions that crop up when getting to know someone may incidentally elicit information about a protected category that is not related to the job. For example, “When did you graduate from college?” and “Where does your spouse work?” implicate age and marital status, respectively.

In addition, questions about a candidate’s membership status in clubs, societies, lodges, or other organizations may run afoul of the National Labor Relations Act (NLRA), which prohibits questions that tend to coerce an employee or restrain or interfere with an their right to join a union. Even in cases where the applicant was ultimately hired, the National Labor Relations Board (NLRB) has found that questions about membership status, feelings toward unions, or past union involvement are unduly coercive and unlawful.

There are also a few questions that an employer needs to ask to ensure that an applicant is qualified for their position, but there is a fine line between exactly what phrasing is acceptable and what is not. For example, an employer may need to know if an applicant is at least eighteen years of age to comply with the Fair Labor Standards Act (FLSA) and its rules for minors. Asking “Are you at least 18 years of age?” is permissible, while “How old are you?” is not. Minute differences such as this reinforce the importance of training all interviewers and utilizing a standard interview outline.

Finally, there are some differences in what an employer may ask or require, depending on whether an offer has been extended. Under the ADA, an employer cannot ask questions during the interview stage that are likely to reveal the existence of a disability or require a medical exam, but these inquiries are permissible once an offer is extended. Similarly, many states have “Ban the Box” laws, which prohibit employers from asking about a candidate’s criminal history or running a criminal background check until after making a job offer.