Pre-employment Interviews What You Can and Can’t Ask

Do you feel completely comfortable asking a candidate all the questions you need to ask? Do you know the areas that you should avoid? More importantly, are all the non-HR managers in your company who conduct interviews schooled on the issue? You need to be able to interview candidates without a cheat sheet—so it never hurts to refresh your memory.

Wayne E. Barlow, an attorney at the Los Angeles-based law firm of Barlow & Kobata, revisits some of the issues surrounding candidate interviews that you and your managers need to know.

How is an employer limited in the inquiries it may lawfully make of job applicants?
In general, it’s improper to make any inquiry about age, race, creed, color, national origin, gender, medical condition, marital status or disability. For example, in one case a court of appeals upheld a Title VII award in favor of a woman denied a job with a county veterans’ affairs agency following a job interview that focused upon her gender, including questions about her plans to have a family. Barbano v. Madison County, 922 F.2d 139 (2d Cir. 1990).

An interviewer should clearly not ask an applicant impermissible questions that relate to such areas, nor should the applicant’s prior employer be asked such questions during a reference check.

What are some of the specific prohibitions on what an employer may ask an applicant?
Federal and various state laws expressly prohibit—either verbally or through the use of an application form—any inquiry that isn’t job-related, which expresses, directly or indirectly, any limitation, specification or discrimination as to an individual’s protected status. State law may also limit specific inquiries. For example, under California law, inquiries about arrests or detentions that don’t result in convictions (other than an arrest for which the prospective employee is out on bail on his or her recognizance pending trial) are, with minor exceptions, prohibited, as are inquiries about convictions for certain marijuana-related offenses.

What sources are available for employer guidance?
Various federal and state agencies have developed guidelines that identify questions that may and questions that may not be asked of applicants. For example, the California State Department of Fair Employment and Housing (DFEH) and other agencies have developed guidelines that declare improper certain pre-employment inquiries.

The DFEH has found the following to be improper:

• Are you married?
• What church do you go to?
• Do you have any disabilities?

State and federal guidelines prohibit language in job announcements or job advertisements that smacks of discrimination—which means sexist job titles, such as “Girl Friday,” or references to “young,” “man,” “woman,” and “recent graduate,” are prohibited.

How may an employer minimize the risk of improper inquiries being made of applicants?
An employer can be found liable even if it does not “intend” to discriminate by the questions it asks. Thus, when preparing interview questions, employers should ask themselves whether there is any possibility the questions might be misconstrued or misinterpreted. Additionally, as a general rule, employers should ask the same questions of all applicants, regardless of the individual’s protected status.

Aside from specific statutory prohibitions, certain questions should not be asked because they elicit information employers may not consider in making an employment decision. Examples of such considerations include education, height, weight, physical condition, military discharge and credit standing. It may be difficult to convince a court the information afforded to the person making the hiring decision was not used in making that decision.

It is for these reasons human resources personnel interviewing applicants need to be carefully trained to avoid improper inquiries. The best approach is to carefully script the interview beforehand with a list of questions that will be asked during the interview process.

What are some of the limitations with respect to pre-employment testing of applicants?
There are many. For example, the Federal Employee Polygraph Protection Act of 1988 prohibits most employers from requiring, requesting, causing or suggesting an applicant submit to a lie detector test. The employer may not take any adverse employment action against a prospective employee because the candidate refuses to submit to a lie detector test or because the employer is aware of any prior test results.

Any exceptions to this rule?
There are exceptions. The federal government and certain federal contractors can require and administer lie detector tests to their job applicants. Federal and some state laws allow mandatory lie detector tests to applicants for certain state and federal law-enforcement positions.

What limitations apply with respect to physical and mental tests of applicants?
The Americans with Disabilities Act prohibits an employer from using any employment test or other selection procedure that screens out or intends to screen out physically or mentally disabled applicants unless the test is related to the position applied for and there is not an alternative job-related test available that will not tend to screen out as many disabled individuals. The test must be administered in such a way that it tests skills necessary for the job and not the disabling condition.

For example, on October 10, 1995, the Equal Employment Opportunity Commission (EEOC) issued revised guidance on the Americans With Disabilities Act (ADA) that allows employers more leeway in asking job applicants questions about reasonable accommodations. The enforcement guidance, issued in a question and answer format, replaces the more detailed and restrictive interim guidance issued in May 1994. The revised regulations let employers address steps necessary to reasonably accommodate an applicant during the initial interview stage. EEOC Guidance on Pre-Employment Inquiries under Americans With Disabilities Act, reprinted at BNA Daily Labor Report No. 196, E-4.