Employment Interview Laws
Like any other employment action in the American workplace, there are laws which protect the applicants from being discriminated against in hiring and promotional decisions in the workplace. Therefore, applicants cannot be disqualified from being selected for a job based on who they are, what they look like, where they are from, etc. Because there are laws to protect against such activity, organizations must respect these protections by only practicing lawful interviewing. Employers who practice inconsistent treatment of applicants, pose inappropriate questions that refer to an applicant's protected class, and/or participate in any other rogue interviewing technique will eventually be accused of discriminatory behavior. Since having the Equal Employment Opportunity Commission folks visiting the workplace for an investigation can be most unsettling, it is important to understand the laws which provide protections against discriminatory practices in hiring.
Respect for Diversity at All Times
The laws that have been put in place to protect applicants are set as a foundation to help ensure equality in how the American workplace makes employment decisions in the selection of applicants. While these laws apply both to employees and prospective employees (applicants), it is easy to understand how hiring decisions can be made for discriminatory reasons. Organizations which focus on what the employee looks like, what gender they are or whether they practice the same religious beliefs as the interviewer, for example, are likely to make an employment decision to hire the wrong person for the wrong reasons.
Know the Laws
When an organization sets out to recruit an individual to fill a vacancy, the hiring decision makers must remember the importance of doing so in a nondiscriminatory manner. One way to ensure an equal and fair approach to recruitment is to respect all protections that are afforded by applicable federal laws. The following list highlights some of the most commonly applied laws as they relate to interviews and hiring:
1. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on the following:
- National Origin
2. The ADEA, Age Discrimination in Employment Act of 1967, as amended, protects an applicant from discrimination because of the individual's age. Specifically, the law prohibits any form of discrimination in employment for those persons who are forty years of age or older.
3. The ADA, Americans with Disabilities Act of 1990, (the ADAAA, Americans with Disabilities Act as Amended) provides protections for persons with disabilities. The law requires employers to make reasonable accommodations for a person with disabilities if the accommodation does not prove to be an undue hardship on the organization. Most accommodations do not meet the threshold of undue hardship as they may simply require a change of work hours, utilization of some inexpensive devices or equipment at the workplace, or rearrangement of a workspace, etc. The website www.eeoc.gov provides more details and definitions of terms that apply to this important law.
4. The Pregnancy Discrimination Act of 1978 was enacted to ensure equal treatment of an applicant or employee who is pregnant. Treating an applicant unfavorably due to a pregnancy, childbirth or any medical condition related to being pregnant is prohibited by law.
While the list above is not all encompassing of different types of discrimination, it certainly describes many of the commonly recognized forms of discrimination that can happen during the hiring process. When an organization wants to recruit for a vacancy, it is important to remember that all aspects of the process must be nondiscriminatory. Lawful interviews, ones that ask questions about the requirements of the job, for example, are crucial steps for implementing a nondiscriminatory approach in the recruitment of new employees.
Know Employee and Applicant Rights
Human Resources Should Monitor Interview Questions
One of the common ways organizations can get into trouble is to ask inappropriate questions of the applicants during a job interview. Any question which crosses the line of addressing the individual's protected class, will likely land the organization into some hot water as an applicant may allege discriminatory actions have taken place in the recruitment process. In other words, the person who did not get selected for the job is likely to cry "foul play" because the applicant may conclude that they were not selected because of a decision based on discriminatory reasons. HR staff may see the following examples of discriminatory hiring actions:
- Gender (example- The organization selects a man instead of a woman for a job that she is very qualified to fill. The hiring manager decides to hire the male applicant because they want the best "man" for the job.)
Organizations should not ask an applicant questions about their plans to start a family, views on working mothers, whether their spouse will mind that they are working late or overtime hours, etc. The applicant who is asked these questions might allege discrimination because they would feel that they were asked questions only because of their gender, female. While one can ask about working overtime hours, they should not relate the question to what the applicant's husband might think about the overtime, the fact that the applicant is a mother with obligations, etc. It is important to speak to the requirements of the job and not focus on who the applicant is. Simply, ask if the applicant would be able to work overtime should the workload demand it.
- Race (example - The organization selects a Caucasian applicant over a Hispanic applicant because the hiring manage feels a Caucasian employee is needed to fit in with the rest of the team.)
Applicants should not be asked if they would have a problem working with a staff which is all Caucasian, for example. Whether the applicant answers the question in the affirmative or the negative, that applicant would likely question the reason they did not get the job, and reasonably conclude that it was because of their race based on the questions that were asked. The interview questions should be geared toward the requirements of the job. If the applicant meets the minimum requirements and has a qualifying background, the interview they are granted should be geared toward knowing more about their experience to see whether they would be the best person for the job. Their race should not be a consideration in the decision that was made in the end.
- Religion (example - The organization selects a Christian applicant over a Jewish applicant.)
Religion is a very personal area that should never come up in an interview. With the limited exceptions of churches, synagogues, religious based employers, etc., employers should not be asking about an applicant's religious practices or beliefs in an interview. For more information about religious accommodation, please see www.eeoc.gov.
- Color (example - The organization selects a person of lighter skin color over another darker skinned applicant)
Applicants will make an impression when they interview for the job. Whether they arrive on time, wearing clean clothes at the interview, are polite to the staff in the office, etc., are some considerations that are looked at by the interviewer. However, interviewers should not refer to the color of the person's skin by asking about where they are from or what ethnicity their parents are.
- Disability (example - The organization selects a person for a job vacancy without a disability for a position that person with a disability is otherwise qualified to do the job with reasonable accommodation.)
If an applicant has an obvious physical impairment that would possibly need an accommodation in the workplace, an employer is allowed to inquire about whether the applicant will require reasonable accommodation to perform the duties and tasks of the job. Interviewers should not assume that the person could not perform the job due to the disability. Many interviewers provided the job description to the applicant for them to indicate if they would be able to perform the essential duties of the job. Remember, all lawfully recognized disabilities are not always obvious. The EEOC website, www.eeoc.gov, offers more details about this complex federal law.
- Age (example - The organization selects a person under the age of forty despite the lack of skills for the job the person selected demonstrates.)
Age is another protected class that is often discriminated against in the workplace. Interviewers should not ask about the employee's year of high school graduation, age of their children, etc., to determine how old they are. Again, it is most important to stick to the essential functions of the job and whether the applicant can meet the job expectations.
- Ethnicity (example - The organization selects an American applicant over a person from the Philippines due to their ethnicity.)
A person's ethnicity never needs to be discussed in an interview. An interviewer questioning the applicant on this point is asking for an allegation of discrimination. It is most important to focus on the applicant's ability to perform the job. Ask business related questions for those important business needs.
While the list above is not all inclusive, it does give a picture of how decisions made regarding hiring can be challenged due to the appearance of an interviewer making inappropriate inquiries of the applicant. For these important appearance or examples of possible violations of law, Human Resources professionals must review and apply the lawful means for interviewing applicants. It is their job to ensure a workplace free of harassment and discrimination. This overview includes ensuring that applicants are treated justly in the interviewing step of recruitment. If supervisors are not sure as to how to properly interview applicants, HR should advise them and provide the appropriate training on the subject. A quick review of the interview questions by HR could prove to be most advantageous for the employer to avoid potential legal issues.
Some Closing Thoughts About Lawful Interviewing...
The safest way to conduct law abiding, fair interviews is to stick to the fact regarding the job vacancy. As mentioned above, it can be helpful to review the job description prior to the interview to be sure to know what the essential requirements and functions of the job are. Also, review the main employment laws listed above to be sure that the questions are not related to the protected classifications as outlined by law. It is also prudent to check with your state to be sure there are not other protected classifications, such as marital status, that may be recognized as a protection for applicants. Seeking HR's guidance during the interviewing process will help ensure a lawful recruitment process.