Hsu & Associates LLC Employment Law Articles and FAQs

FREQUENTLY ASKED QUESTIONS ABOUT CONDUCTING EMPLOYMENT INTERVIEWS

This article about conducting employment interviews includes a generalized discussion of some discrimination laws. It is designed to identify key concepts and is not intended to be a comprehensive discussion of the statutes or law governing this area. These materials should not be construed as legal advice or legal opinion, which can be rendered properly only when related to specific facts.

1.   How are applicants protected by discrimination laws?

a.   Discrimination laws protect individuals during the application stage, as well as after they are hired. Employers must be careful not to ask questions during the interview or application process that could form the basis for a claim that an individual was not hired for a discriminatory reason.

b.   Employers cannot make hiring decisions based on an applicant’s membership in the following classes:

• sex/gender
• race
• color
• age
• national origin/ancestry
• handicap/disability
• religious creed
• veteran status
• sexual orientation (in Massachusetts)

2.   Can an employer ask an applicant questions about age?

a.   Employers should not ask applicants how old they are or when they were born.

b.   Employers should also avoid questions designed to elicit that information, such as asking when an applicant graduated from high school or college.

3.   May I ask an applicant about her childcare arrangements?

a.   Employers should avoid questions about marital status, number of children, child-rearing duties, pregnancy, etc. These issues tend to affect women more than men, but should not be asked of either male or female applicants.

b.   If job-related requirements such as attendance or travel are an issue, ask questions about an applicant’s ability to meet those requirements in a gender-neutral way. For example, state that the job requires 50% travel and ask if the applicant would be able to meet that requirement.

4.   Should I ask an applicant whether he or she is a U.S. citizen?

a.   Employers cannot discriminate against applicants on the basis of their citizenship or national origin. Interviewers therefore should avoid questions designed to elicit information about an applicant’s country of origin or citizenship status.

b.   However, employers may ask applicants about their ability to provide evidence that they are eligible to work in the United States. Questions about an applicant’s language abilities are permissible as long as the inquiries are job-related.

5.   If I need to staff my business seven days a week, can I ask applicants about their religion or what religious holidays they observe?

a.   Employers should not ask applicants about their religion or what religious holidays they observe. If you are concerned about staffing, explain your work schedule requirements and ask applicants if they can fulfill the requirements.

b.   Applicants may wear clothing that is associated with their religion; do not ask them why they wear certain clothes or whether they are required to do so.

6.   What if I’m curious about an applicant’s race or ethnicity?

a.   Employers should not ask employees about their race. Often, activities or prior experiences listed on resumes may be for race-related organizations. You can ask employees job-related questions about those activities (i.e. what skills did you acquire).

b.   You should avoid questions that focus on any race issues or are designed to elicit information about an applicant’s race.

7.   Should an employer ask questions about an applicant’s sexual orientation?

a.   Sexual orientation is a protected class under Massachusetts law, but not currently under federal law.

b.   Employers with operations in Massachusetts should avoid questions that may elicit information about sexual orientation.

8.   Are there any special concerns about questions concerning an applicant’s disability?

a.   Yes. Disability discrimination laws place a number of explicit and implicit restrictions on employers in the hiring process.

b.   What can't employers ask?

• A potential employer may not ask an applicant (or a third party with knowledge about the applicant) about the existence, nature or severity of a disability.
• Would-be employers should avoid pre-employment inquiries about a person's health and/or disabilities, even if brought up by the applicant.
• An employer may not ask questions that are so closely related to disability that the individual's response is likely to elicit information about a disability. Thus, prospective employers may not ask whether an applicant will need reasonable accommodations to perform the essential functions of the job since such inquiries are likely to elicit information about whether the applicant is, in fact, disabled.
• Employers may not ask an applicant if he or she can perform major life functions (unless it is about the ability to perform job functions), or if he or she has previously sustained job-related injuries or has sought benefits under workers' compensation laws.

• An employer may outline the essential functions of the position (including attendance) and ask whether the applicant is capable of performing those functions, either with or without reasonable accommodation. Employers should be wary, however, that if an applicant responds by stating that he or she can perform the essential functions of the job but needs reasonable accommodations to do so, the employer should not follow up by asking what type of reasonable accommodation is needed. Such a follow-up question is likely to elicit information about the nature and severity of a disability.
• Employers are permitted to ask an applicant to describe or demonstrate how he or she would perform job-related functions, with or without reasonable accommodations, because these inquiries elicit information about an employee's ability, not information about an applicant's disability. Such a request must be made of all applicants in the same job category regardless of disability. Such a request may also be made of a specific applicant with a known disability if the employer reasonably believes that the known disability will interfere with job-related functions.
• An employer may state its attendance requirements and ask if the applicant would be able to meet those requirements either with or without reasonable accommodations. An employer may also ask about an applicant's prior attendance record. However, if the applicant reveals a significant amount of absences, an employer may not ask if these absences were due to an illness or a disability because such inquiries are likely to elicit information about the existence, nature or severity of the applicant's disability.

9.   What if the applicant brings up one of these topics – such as a reference to his or her age, children, religion or disability?

a.   Even if an applicant raises one of these topics, you should not ask questions that may elicit further information.

b.   As a general rule, focus your interview on describing the responsibilities, duties and performance expectations of the job.

c.   You should also seek the help of your human resources representative or your legal counsel to obtain further help in conducting effective employment interviews.

Practical Management Tips … In Conducting Employment Interviews

• Review and update job descriptions to reflect the duties for the position.
• Be prepared for the interview and know what questions you will ask all applicants.
• Stay focused during the interview and listen carefully to what each applicant says.
• Evaluate an applicant’s resume to determine whether the skills, experience and expertise meet the requirements of the position.
• Promote discussion about the position, including specifics about the essential job functions and your expectations for performance and other goals
• Make notes about the interview without being derogatory or discriminatory.
• Consider formal training on conducting interviews that includes role-play exercises.

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