Asking for Trouble

Hiring a new employee is full of decisions with legal significance, like whether or not to conduct a background check or whether to review the applicant’s social media pages. While these are certainly important issues, it is also important to consider the questions you may or may not ask during the interview process.

It is fairly obvious that you should not ask an applicant what religion they practice, their nationality or age. After all, Title VII includes religion and national origin as a protected classes, and the ADEA forbids discrimination against workers older than 40. However, you may ask an applicant if there are any days, weeks or time period when he or she cannot work, to determine their availability, or you can ask an applicant if he or she speaks any other languages, if it is relevant to the job, if you’re concerned about English fluency. Age questions, on the other hand, are generally only allowed to determine if an applicant is legally old enough to work for your business. However, other areas become more complicated

You may not ask a candidate if she is pregnant, if she intends to become pregnant or if she would return to work after maternity leave. However, if you are concerned about this particular area, there are questions you may ask. Inquiring into the candidate’s ability to work overtime and travel (if relevant to the job) should alleviate any concerns about whether family obligations will cause a problem. Similarly, asking the candidate about long-term career goals is proper and will allow you to gauge her commitment level.

The hiring of smokers and obese workers has become something of a hot-button issue lately, but asking if a candidate smokes is not advisable. While it is likely a poor choice to deny employment based solely on smoking, you could ask if he or she was previously disciplined for violating company policies regarding the use of tobacco products. Similarly, while you should not ask a candidate’s weight or body-mass index, you may inquire about the candidate’s ability to perform the necessary job functions, like standing for certain periods or frequent bending and lifting.

Finally, and often most confusing for employers, you cannot ask a candidate about disabilities. However, you may ask the applicant whether or not they are able to carry out the necessary job functions and perform them in a safe manner. You should not ask the applicant about any accommodations he or she may need until you have determined that the candidate is qualified for the job and you are considering them for employment. At that point, you will have to determine whether you can make reasonable accommodations for the applicant’s limitations, preferably with the assistance of legal counsel.

Prior to interviewing, you should prepare a list of questions with your legal counsel. A prepared list of questions will help you avoid asking any illegal or inappropriate questions, and also ensure that none of the candidates receive treatment that could be deemed favorable.