Navigating Interviews: Questions To Avoid – Part I
The goal of the interview process is to determine if a candidate has the right skills, knowledge, and aptitude to succeed in a position within your startup or small business. The key is to focus on questions that are directly related and relevant to the requirements of the job to determine if the candidate meets pre-determined, objective criteria for the position.
The Equal Employment Opportunity Commission (EEOC) filed 143 discrimination or harassment lawsuits between October 1, 2022, and September 30, 2023, representing a more than 50% increase over the filings from fiscal year 2022. Keep in mind these include cases for applicants and employees.
During the interview process, it's natural to be curious during interviews or to make small talk, but there are certain questions that can inadvertently lead to legal and ethical pitfalls. In this two-part blog post, we'll guide small business owners and anyone who is involved in the interview process in your small business through the top 12 category of questions you should steer clear of during interviews to ensure a fair and compliant hiring process.
1.Personal or Familial Status & Plans: Avoid asking questions about the candidate’s marital status, family plans, or whether a candidate has children. Examples include:
Are you married? Single? Do you have a partner/significant other?
Is your significant other employed? Where?
Is your significant other subject to a job transfer?
Are you currently pregnant?
Do you have children or do you plan to have children in the near future?
Who do you live with?
What childcare arrangements do you have in place?
Why Avoid: These questions are irrelevant to a candidate’s ability to be successful in a position. Some states prohibit discrimination against familial status, marital status, or childbirth. These questions tend to discriminate against women and same-sex partners by denying or limiting employment opportunities. A candidate may interpret these types of questions as discriminatory and may infringe on a candidate's privacy. Focus on their professional qualifications instead.
During the interview process, it's natural to be curious during interviews or to make small talk, but there are certain questions that can inadvertently lead to legal and ethical pitfalls.
2. Age-Related: Avoid inquiries about a candidate’s age or graduation year. Examples include:
What year did you graduate from school/college?
What were you doing when 9/11 tragically struck in 2001? Desert Storm? Hurricane Sandy?
How many more years are you planning to work before you retire?
There is a large disparity between your age and that of the position’s co-workers. Is this a problem for you?
Why Avoid: Such questions can be perceived as biased. The number of EEOC filings under the Age Discrimination in Employment Act of 1967 (ADEA) more than doubled in 2023. The ADEA prohibits age discrimination against individuals aged 40 and above and some states have laws prohibiting discrimination against individuals below age 40. Focus on relevant skills and experience.
3. Health and Disabilities: Avoid asking questions about a candidate's health, disabilities, or medical history. Examples include:
How did you lose your limb/hearing/sight/hair?
Did you develop [insert any disability here] while in the military?
Do you have any disabilities?
About how much sick time did you use in your previous jobs?
Have you ever filed a worker’s compensation claim in your previous jobs?
Why Avoid: The Americans with Disabilities Act (ADA) forbids employers from asking job candidates general questions about whether they are disabled or asking them about the nature and severity of their disabilities. The Genetic Information Nondiscrimination Act (GINA) of 2008 protects individuals from genetic discrimination in employment and health insurance. It is a good practice to ask all candidates during the interview process, regardless of a visible or invisible disability, “Will you have any barriers to performing the essential functions of the job?” Assess the candidate based on their ability to perform job-related tasks.
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4. Religion or Beliefs: Avoid asking questions about religious affiliation or beliefs. Examples include:
What church/synagogue/temple do you attend? Do you attend church/mass?
Which holidays will you need personal time off?
What denomination are you?
Will you always need to wear a hijab/yarmulke/Sikh while at work?
Are you pro-life or pro-choice?
Why Avoid: Title VII of The Civil Rights Act of 1964 protects people from religious discrimination. Also, asking about a candidate's beliefs can lead to uncomfortable situations. Concentrate on skills and qualifications relevant to the job.
5. National Origin or Citizenship: Avoid asking questions about a candidate's national origin, citizenship, or language proficiency. Examples include:
When did you become a citizen of the U.S.? First arrive to the U.S.?
Which port did you enter the U.S. when you arrived?
Where are you originally from? Where is your accent from?
How did you learn [insert any language here]?
Are you a first generation American?
Why Avoid: The Immigration Reform and Control Act of 1986 (IRCA) protects people from citizenship discrimination and Title VII of the Civil Rights Act of 1964 protects people from discrimination based on national origin. Although it can be easy to make small talk around these topics, these questions can be construed as discriminatory. Focus on assessing language skills necessary for the role, if applicable.
6. Gender or Gender Identity: Avoid asking questions about gender or gender identity. Examples include:
What gender do you identify?
Do you have a girlfriend or boyfriend?
Have you ever had gender reassignment surgery or undergone hormone treatment?
Are you comfortable working for a female supervisor?
Are you comfortable working alongside team members who are transgender?
Why Avoid: Title VII of the Civil Rights Act of 1964 protects people from discrimination based on gender and gender identity. Gender-related inquiries can lead to gender bias claims. Concentrate on the candidate's qualifications and experience.
Conclusion
It's crucial to foster a fair and inclusive hiring environment. Steering clear of these sensitive questions not only ensures legal compliance but also creates a positive candidate experience. It is important to note that this list is not an exhaustive list of categories of questions but provides a great foundation.
Focus on evaluating skills and qualifications to build a team that aligns with your small business’ vision and values. These types of questions only allow bias to contaminate the selection process. A respectful and lawful interview process sets the foundation for a diverse and dynamic workplace culture. Stay tuned for the next six categories of questions to avoid next week.
Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.
