Pre-Employment Interviews: What You Can and Can't Ask

By Barlow, Wayne E. | Personnel Journal, January 1996 | Go to article overview

Pre-Employment Interviews: What You Can and Can't Ask


Barlow, Wayne E., Personnel Journal


Been a while since you've reviewed the rules? Take this refresher course on the legal restrictions of candidate screening.

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 formany 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. …

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