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Interviewing: How to Stay Out of legal Hot Water

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Some interviewers ask great questions; others ask dumb questions; and, worst of all, some ask questions that can get them into legal hot water.

Every recruiter, hiring manager, executive, and department manager must realize that asking the wrong questions or making improper inquiries can lead to discrimination or wrongful-discharge lawsuits. These suits can be won or lost based on statements made during the interview process. To stay out of hot water:

Avoid these seemingly non-threatening questions.

• Are you a U.S. citizen? (Seeking national origin.
• Do you have a visual, speech, or hearing disability?
• Are you planning to have a family? When?
• Have you ever filed a workers’ compensation claim?
• How many days of work did you miss last year due to illness?
• What off-the-job activities do you participate in?
• Would you have a problem working with a female partner?
• Where did you grow up?
• Do you have children? How old are they?
• What year did you graduate from high school? (reveals age)

Steer clear of questions that would be considered discriminatory.
For example, you shouldn’t ask a female applicant detailed questions about her husband, children and family plans. Such questions can be used as proof of sex discrimination if a male applicant is selected for the position, or if the female is hired and later terminated. Older applicants shouldn’t be asked about their ability to take instructions from younger supervisors. Younger applicants should not be asked about working with older workers.

Don’t make binding contract statements.
When describing position, avoid using terms like permanent, career job opportunity or long-term. Suppose that an applicant is told: “If you do a good job, there’s no reason why you can’t work here for the rest of your career.” The applicant accepts the job and six months later is laid off due to personnel cutbacks. This could lead to a breach of contract claim where the employee asserts that he or she can’t be terminated unless it’s proven that he or she didn’t do a ‘good job’.

Ask the right kinds of interview questions.
Organizations that consistently hire top performers and also stay on the right side of the law use a behavioral-based interview process. First they conduct a job analysis audit to objectively identify the core competencies required for a given job. Then they customize a list of behavioral-based interview questions to identify those competencies. Finally, they not only train their recruiters, but also their executives, department managers, and hiring managers on legal and effective interview techniques. Here are some examples of questions that focus, not on the person, but the specific competencies that the job requires.

• "What has been a particularly demanding goal for you to achieve?" (This question taps into the candidate’s achievement orientation and requires them to explain the obstacle and their and actions to overcoming the obstacle).
• "What are the typical customer interactions you have in your present position?" Can you think of a time when you had to think quickly on your feet to solve a problem? (This question focuses on the candidate’s customer service skills and orientation).
• "Have you ever been in a situation where you have had to take on new tasks or roles? Describe this situation and what you did?" (This question allows you to probe into the candidate’s degree of flexibility).

By implementing the behavior interviewing, all organizations – small or large, private or public, for profit or non profit – can significantly reduce their exposure to employment practices claims and increase their potential for hiring top performers.

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