Ask an Employment Lawyer: What Questions Can I Ask in an Interview?
Many applicants look great on paper. But when the interview process rolls along, you realize the personality won’t work with other employees or the role. A bad interview is difficult to quantify. It’s often subjective. Unfortunately, labeling an interview “bad” based on subjective factors can be a cover for illegal hiring practices.
You’ll never eliminate all levels of subjectivity in the interview and job selection process. Even if your company is using artificial intelligence to make hiring decisions, the subjective biases of the software programmers will impact your hiring practices. Courts can hold you liable for those biases, even if you weren’t the one writing the code.
If you believe an applicant's prior roles, outlook, and personality won’t fit the job, that can be a legitimate business reason not to hire. If that’s the case, document your logic with clear business reasons behind the decision to ensure checks and balances on the hiring and interview team to stop discrimination.
You must also ensure your hiring team does not ask legally problematic questions or make foolish remarks or notes that will get your company in trouble. The last thing you want is a note in the interview file that the applicant would not be a good “cultural fit” when he is a minority applicant. If your interviewing team is white and the applicant is black, that statement sounds like discrimination without additional context.
If the interviewer meant, “The applicant would not be a good fit because he has no experience coding and therefore would not be able to work effectively with our other team members,” that’s a different story. It needs to be articulated. You don’t want your file to create a misleading picture that might be used against you.
When you interview a candidate, it’s good to be curious. Just not too curious. This extends to questions even outside the formal interview. I know you want to get to know the potential hire. But the balancing act is asking questions that allow you to get to know the candidate without crossing any legal lines or turning the interview into an illegal background check. You don’t want to open yourself to a claim you didn’t hire because of religious beliefs, national origin, sexuality, age, or other protected classifications.
As an interviewer, you need to walk a fine line when it comes to asking the right questions in the interview and avoiding the wrong ones.
Let’s examine some questions that will get you into hot water.
What year did you graduate?
Can you work on the weekends and nights?
Do you have any convictions?
Are you married?
What do your children like to do?
What accent is that I hear?
Do you have any health issues we need to be aware of?
What church do you go to?
Why is there a gap between jobs on your resume?
What were you earning at your last job?
Hopefully, you quickly figured out why some of these questions can get you into trouble. Let’s dive into these questions and ensure we understand why they pose a problem.
What year did you graduate?
If you know the graduation year, you’ll know the approximate age of the applicant. If you know the applicant's approximate age, it’s easier to discriminate based on age, and it’s easier for the applicant to bring an age discrimination claim. You don’t need to know the year someone graduated high school. You just need to know the applicant graduated.
Can you work on the weekends and nights?
Be careful with this question. Describe the job's requirements and confirm the applicant can meet the job's duties. If it involves weekend or night work, so be it. But asking about weekend and night shifts if it’s not essential to the job is a problem. A court could see this as a thinly veiled attempt to figure out someone’s religious beliefs, observances, or childcare situation. If you are going to ask about weekend or night work because it is essential to the job, make sure the hiring team does not only ask women. That’s gender discrimination.
Do you have any convictions?
Nobody wants to hire a criminal with a serious felony to run their daycare center. Unfortunately, the interview probably isn’t the time or place to ask this question. Instead, let the human resource department address this issue, in writing, through the application process.
The human resource department, working with legal, will be able to make sure that your company asks this question at the right time, with the proper scope, for legitimate reasons, and with the correct documentation. Why is this so important? There are just too many state and local laws that limit the ability to ask about criminal convictions. It’s easy to make mistakes with these “ban the box” laws.
Further, the Equal Employment Opportunity Commission (EEOC) is skeptical of employers prematurely using this type of question as a pretext to eliminate qualified minority applicants who may have been more likely to face criminal charges in the past because of discrimination. For those reasons, especially if you’re interviewing remote candidates, you’re better off letting the human resources department handle this issue before or after the interview.
Are you married?
There’s a good chance your applicants will organically volunteer their relationship status if they share anything about themselves (e.g., “I want the role because my wife wants to move closer to her family”). However, I discourage prying into an applicant’s marital status. A court could see this as a back door for discrimination based on familial or marital status. On a related note, never ask candidates whether they plan to have children. That’s not your business and is a problematic question on many fronts.
Why is there a gap in your resume?
When you see a resume gap, the temptation is to assume that things went wrong. Don’t make this assumption. There’s a good chance that the employee took time off to care for a child, a parent, or themselves. They may have had cancer, a hospitalized child, or been dealing with some other serious health issue. You don’t want to know about those things in the interview process because they should not be relevant to whether or not you hire the person.
Plus, even if employees leave a prior employer on good terms, there’s a good chance they signed a separation agreement that told them not to disparage the employer. You don’t want to put your applicants in an ethical dilemma where they feel compelled to either 1) share medical information about themselves or a family member or 2) breach a separation agreement.
Instead, I suggest you ask the applicant, “What did you do during your gap in employment to keep your professional skills sharp?” The applicant might tell you why she left her previous job. If she does, don’t feel bad. That’s not your fault. But hopefully, she’ll let you know how she took courses, got training, learned a new skill, or kept up on the literature.
What were you earning at your last job?
In some states, this question is automatically illegal. But even if not the case where your applicant lives, the question could still be used as evidence of discriminatory pay practices. The EEOC frowns on this question because if applicants must disclose their pay, it will disproportionately hurt women. After all, current pay is often used as leverage or an anchor point in salary negotiations. So don’t use this question.
There are plenty of other poor interview questions that could be improved. For instance, don’t ask questions about ethnicity or race. Don’t ask about a candidate’s church or denomination.
Instead of asking those kinds of personal questions, you should ask questions like these:
What parts of the job would you find most challenging?
What in your prior work experience makes you think you’re a good fit?
What work accomplishments are you proud of and why?
Can you describe a stressful work situation and how you handled it?
Can you tell me about a time you disagreed with your boss and how you handled it?
I know some of these questions could be better. But they should help you figure out who the candidate is without getting you into trouble.
