five interview questions to ask of every candidate

www.dinslaw.com

Five Interview Questions to Ask of Every Candidate

Ryan W. Green, Esq.Dinsmore & Shohl LLP

CincinnatiFebruary 3, 2011

© 2011 Dinsmore & Shohl LLP | www.dinslaw.com

Hiring Process

There are many components to the Hiring Process– Needs assessment and position announcement– Application Process

– Interviewing– Selection– Negotiating and Extending an Offer– Post-Offer Activities


Hiring Process

As a Best Practice, each of these components needs to operate in harmony and with consistency

– Is the job description and announcement consistent with the needs assessment?

– Do the applicants selected for interviews match the job description and posting?

– Are the interview questions tailored to the job being filled?– Are the offer and placement for the job posted and is the selected candidate

the best qualified?


Hiring Process

The job interview is a critical component of the overall hiring process, where the person on paper takes life


Why are you conducting an interview?

– To probe into the applicant’s experience, training and skills that were and were not included in the resume or application

Do not just judge whether they are qualified, but how well qualified

– To evaluate whether the applicant would work well with the existing team

– To explain the position the applicant seeks– To answer applicant’s questions about the job and the company


Why are you conducting an interview?

Why interview properly?

– To find the most qualified employee to meet the requirements of the open position

– To avoid destroying the at-will relationship

– To avoid a host of potential legal liabilities


Learning Objectives

1. Learn how to avoid spending too much time on extraneous, inappropriate or simply unhelpful topics.

2. Learn the legal risks involved of hiring unqualified applicants when more qualified applicants are available.

3. Learn how to ask probing questions to determine whether an applicant's background is appropriate for the job.


Learning Objectives

4. Learn how to determine whether an applicant may need an accommodation.

5. Learn how to uncover potentially problematic criminal histories and the legal risks associated with that line of questioning.

6. Learn what types of questions to avoid because they have a heightened risk of creating legal liability and creating direct evidence of discrimination.


Five Primary Interview Questions

This session is designed to provide insights about five interview questions that should be asked of every candidate, and why those may reduce the risk of legal liability.

First, only lawful questions should be asked. – Numerous topics should never be discussed in an interview, and

many more can be covered but can be a very tricky inquiry.



Second, objective, probing questions about the candidates true experience and qualifications should be explored.



Third, every applicant should be asked whether they fully completed the job application and asked to supplement any unanswered questions.



Fourth, every applicant should be prepared to answer questions about any gaps in employment. The true reasons for lengthy gaps may be easily explained, or could be major red flags.



Finally, every applicant should be asked - in a lawful manner - whether they can perform the essential job duties


#1

Ask Only Lawful Questions



Why is this important from a legal standpoint?

– To avoid or reduce the risk of potential claims for discrimination


Ask Only Lawful Questions: Race

There are no job-related considerations that would justify asking an applicant a question based on race.


Ask Only Lawful Questions: Race

UNACCEPTABLE

All

ACCEPTABLE

None


Ask Only Lawful Questions:Religion

There are no job-related considerations that would justify asking about religious convictions, unless your organization is a religious institution, which may give preference to individuals of their own religion.


Ask Only Lawful Questions: Religion

UNACCEPTABLE

Inquiry into applicant's religious denomination, religious affiliations, church, parish, pastor or religious holidays observed. (unless employer is a religious institution)

ACCEPTABLE

None (unless employer is a religious institution)


Ask Only Lawful Questions: Gender

Generally, there are no appropriate questions based on the applicant's gender during the interview process. Specifically:

(a) Women are no longer protected under state wage/hour laws re: number of hours worked, lifting restrictions, etc.

(b) It is unlawful to deny a female applicant employment because she is pregnant, or planning to have a child at some future date.


Ask Only Lawful Questions: Gender

UNACCEPTABLE Do you wish to be addressed as Mr.?, Mrs.?, Miss?, or Ms.? • Questions on marital status, number of children, child care

arrangements, etc. are not appropriate.

ACCEPTABLE

Questions as to availability to work should be job-related: What hours can you work? What shift(s) can you work? Can you work on weekends and/or holidays?


Ask Only Lawful Questions:Sexual Preference

Under certain state and municipal laws, there are no permissible questions regarding an applicant's sexual preferences.


Ask Only Lawful Questions:Sexual Preference

UNACCEPTABLE

Depends upon the jurisdiction

ACCEPTABLE

Depends upon the jurisdiction


Ask Only Lawful Questions:Personal Characteristics

Height and/or weight restrictions -These questions may support gender or national origin discrimination claims unless their relationship to specific job requirements can be demonstrated.


Ask Only Lawful Questions: Personal Characteristics

UNACCEPTABLE

What color are your eyes, hair?

What is your weight?

ACCEPTABLE

Only permissible if there is a bona fide occupational qualification.


Ask Only Lawful Questions: Age

Under the EEOC's Age Discrimination Interpretive Rules issued in 1981, as amended, a request for date of birth on the employment application is permissible, with an appropriate disclaimer shown. In practice, this is not asked on applications.



Any recruiting effort that is age-biased such as "recent graduate", or any question during the interview process that deters employment because of age is unlawful. The Age Discrimination Act of 1967 bars discrimination against persons age 40 or over.


Ask Only Lawful Questions:Age

UNACCEPTABLE How old are you?

When were you born?

When did you graduate from high school?

ACCEPTABLE

Are you over 18?

Can you verify proof of your age if hired?


Ask Only Lawful Questions: Arrest & Conviction

Questions relating to an applicant's arrest record are improper, while questions of an applicant's conviction record may be asked, if job related. The Equal Employment Opportunity Commission and many states prohibit use of arrest records for employment decisions because they are inherently biased against applicants in protected classes.



The EEOC has issued a Revised Policy Statement covering the use of conviction records by employers in making employment decisions:

– (a) The employer must establish a business necessity for use of an applicant's conviction record in its employment decision. In establishing business necessity, the employer must consider three factors to justify use of a conviction record:

(1) Nature and gravity of the offense for which convicted; (2) Amount of time that has elapsed since the applicant's conviction

and/or completion of sentence; and (3) The nature of the job in question as it relates to the nature of the

offense committed.



The EEOC's Revised Policy Statement eliminated the existing requirement that employers consider the applicant's prior employment history along with rehabilitation efforts, if any. The Revised Policy Statement requires that the employer consider job-relatedness of the conviction, plus the lapse of time between the conviction and current job selection process



UNACCEPTABLE Have you ever been arrested? Do not inquire about convictions that have been

lawfully sealed or expunged. Do you have any pending criminal charges?

ACCEPTABLE Have you ever been convicted of a crime? If so, when, where and what was the disposition of the case?


Ask Only Lawful Questions: National Origin

You may not ask an applicant where he/she was born, or where his/her parents were born. You may ask if the applicant is eligible to work in the United States.


Ask Only Lawful Questions: National Origin

UNACCEPTABLE What is your national origin? Where are your parents from? What is your maiden name? What is your native language? Avoid inquiry into use of how applicant acquired ability to read, write

or speak a foreign language.

ACCEPTABLE Are you legally eligible for Employment in the United States? Have you ever worked under a different name? Inquiry into languages applicant speaks and writes fluently may be

okay. (If the job requires additional languages)


Ask Only Lawful Questions: Financial Status

An interviewer should not ask if the applicant owns or rents a home or car, or if wages have been previously garnished, unless financial considerations for the job in question exist. Any employer who relies on consumer credit reports in its employment process must comply with the Fair Credit Reporting Act of 1970 and the Consumer Credit Reporting Reform Act of 1996.


Ask Only Lawful Questions: Financial Status

UNACCEPTABLE Do you own your own home? Have your wages ever been garnished? Have you ever declared bankruptcy?

ACCEPTABLE

Credit references may be used if in compliance with the Fair Credit Reporting Act of 1970 and the Consumer Credit Reporting Reform Act Of 1996.


Ask Only Lawful Questions: Military Record

You may not ask what type of discharge the applicant received from military service. You may ask whether or not the applicant served in the military, period of service, rank at time of discharge, and type of training and work experience received while in the service.


Ask Only Lawful Questions: Military Service

UNACCEPTABLE

What type of discharge did you receive?

ACCEPTABLE What type of education, training, work

experience did you receive while in the

military?


Ask Only Lawful Questions: Disability

You may not ask whether or not the applicant has a particular disability. You may only ask whether or not the applicant can perform the duties of the job in question with or without a reasonable accommodation.


Ask Only Lawful Questions: Disability

UNACCEPTABLE Do you have any job disabilities? Have you ever filed for workers’ compensation? Do you have any medical problems? How much sick time/medical leave did you take last year?

ACCEPTABLE Can you perform the duties of the job you are applying for? If a disability is obvious, you may ask aboutaccommodations.



Although federal EEO laws do not specifically prohibit any pre-employment questions, the EEOC does look with "extreme disfavor" on questions about age, color, disability, national origin, race, religion, gender or veteran status. Many state fair employment laws do expressly forbid certain types of questions.


Ask Only Lawful Questions: Other areas of concern

Reliability and attendance

Organizational affiliations


Ask Only Lawful Questions: Reliability and Attendance

UNACCEPTABLE Number of children? Who is going to baby-sit? What religion are you? Do you have pre-school age children at home? Do you have a car?

ACCEPTABLE What hours and days can you work? Are there specific times that you cannot work? Do you have responsibilities other than work that will interfere with

specific job requirements such as traveling?


Ask Only Lawful Questions: Organizational Affiliations

UNACCEPTABLE

List all clubs, societies and lodges to which you belong

ACCEPTABLE

Inquiry into applicant's membership in organizations which the applicant considers relevant to his or her ability to perform job.


#2

Ask Probing Questions to Assess Qualifications


Is the Candidate Really Qualified?

Resumes and applications can look and sound impressive, but people . . .

– Lie

– Exaggerate or stretch the truth (intentionally and not)

– Misunderstand what the job really is



Ask questions about the candidate’s experience in the context of the requirements of the position being filled.



Why is this important from a legal standpoint?

– Potential failure to hire and promote claims Hiring a candidate who is less qualified than a candidate in a

protected class can lead to allegations of bias and discrimination

It is difficult to defend cases where the hired or promoted employee is not only clearly less qualified, but unqualified for the job



Why is this important from a legal standpoint?– Conducting a thorough vetting of job related qualifications will

determine who is the best qualified individual– What are the pros and cons of documenting the relative merits of

candidate qualifications?– “I just liked them better” or “they fit in better” can be a very

difficult defense without more, even if there is no actual discrimination



The interviewer should understand what the job requirements are for the position being filled, be prepared in advance by reviewing applications and resumes and have questions tailored to understand the experience and relative differences in candidates’ qualifications


#3

Be Sure the Application is Complete


Why Have a Complete Application?

Why have an application if it is not going to be complete?

– Applications are the source of much information useful to the interviewer to evaluate the candidate’s experience



Why have the candidate acknowledge the application is complete?

– Failure to disclose certain information could support a later dismissal of an employee

– Failure to disclose certain information can lead to the defense of “after-acquired evidence” if litigation ensues



The application is standardized and is the candidate’s voice

– This provides objective information about the qualifications of an applicant that can be readily compared at a later time, and by others, of the applicant pool’s qualifications and experience


#4

Inquire about Gaps in Employment


Why are Employment Gaps Important?

This is a particularly important factor to consider in the current economic climate

As we exit the Great Recession, it will be especially difficult and important to evaluate whether gaps in employment suggest an otherwise capable employee caught up in the economic tide, or, a bad employee that would have been unemployed for periods of time in spite of the economic conditions.



Asking about such gaps will often lead to the free disclosure of important information

– For example . . . “I was fired for punching my boss – but he deserved it and I had trouble finding another job.”

This would be helpful information to know in making a hiring decision



But be careful . . .

– For example . . . “I had some medical issues and had to be off work.”

DO NOT follow up and ask what was wrong, etc.


#5

Can you Perform the Essential Job Duties


Disability Inquiry

We talked about this before . . .

– There is a very limited context in which you can inquire about physical limitations

Can the applicant perform the essential job duties


Disability Inquiry

Know what the essential job duties are

– It is somewhat problematic to determine whether someone can perform the essential job duties if they are not defined, poorly defined or the interviewer is unaware of what they are


Disability Inquiry

What about the TMI (too much information) interviewee?

– Everyone who interviews applicants will occasionally encounter people who provide far too much personal information

– Resist the opportunity to engage in a detailed discussion about what limitations a person may have and direct the conversation back to the job duties and the individual’s ability to perform them, with or without a reasonable accommodation


Practical Tips

Prepare and update job descriptions

Clearly communicate the job requirements to applicants

Clearly communicate the job requirements to interviewers

Ensure job applications are complete

Train, train, train interviewers to follow these tips and strategies

Find the most qualified employees as possible during the interview


QUESTIONS?

www.dinslaw.com

Ryan W. Green, Esq. Colleen P. Lewis, Esq.

five interview questions to ask of every candidate

Documents