The Civil Rights Act of 1964 and the Equal Opportunity act of 1972, along with the Education Amendments of 1972, are what most of us think about when we talk about equal opportunity in the workplace, or any other place where personal information is requested from us. These laws outline several groups which are protected from discrimination. A person who belongs to one of these groups may not be discriminated against for being a member of that group.
While this seems like a big list of “no” to obtaining useful information, many job candidates will volunteer a lot of personal information that you can’t directly ask for. If you take notes for interviews, you should remember that those notes are a legal document and can be sub poenaed in any litigation, so while writing notes like “pregnant,” or “married,” or “wheelchair” might help you recall that one person in the 20 you interview, they can also be evidence of discrimination.
Most often, the first thing an interviewer should consider is: does this question relate to a job function, and could the answer be interpreted to obtain other personal information not relevant to the job?
1. Are you a U.S. citizen?
Seems harmless enough, if you’re trying to figure out if they’re legally authorized to work for you. But if that’s your real question, it’s the one you should ask. Unless there’s a special reason that the potential employee must be a citizen (like jobs with some federal agencies) the information isn’t relevant. Instead, you can ask, “Are you authorized to work for any company in the United States?”
2. Where do you live? Are you renting or buying?
Great questions if you’re chatting to someone in line at your local Starbucks, not so good if you’re sitting across the desk from them in an interview. The candidate’s proximity to the work location has nothing to do with whether they can carry out the function, and asking if they are buying … well, it’s a reasonable deduction that if the person in front of you is looking for a job but they’re buying a house, then there’s another money earner in their life, most likely a spouse. And you can’t ask if a candidate is married. What you can ask is whether they’d be able to get to work at the start of their shift.
3. So is this “Miss” or “Mrs.” Employee?
Bad interviewer! Inquiring about marital or familial status is illegal, so don’t do it.
You can ask if they’ve ever worked under a different name to the one they provided on their application, for the purposes of obtaining references, and most times you’ll hear, “Before I was married I used my maiden name.” But you can never, never ask about marital status. Not unless you want to suffer a sexual harassment/equal opportunities lawsuit double-whammy.
4. Do you smoke or drink or use drugs?
As a non-smoker it always frustrated me, in a previous job, that the smokers would take multiple smoke-breaks through the day and would never get called to account for the several hours of non-productivity they’d add to each week. As an employer you can’t ask this question, but you can ask if the candidate has ever had disciplinary action for violating a workforce policy on alcohol or tobacco or illegal drugs, but not whether they use them.
5. Do you observe Christmas/Hanukkah/Ramadan?
Sure, it might be useful to know if an employee is going to fast during office hours, or if they’ll need to cut out at dusk to be with their family (which you can’t ask about) to light their menorah. But you can’t ask about it. Even though it’s unlikely that an Orthodox Jewish or Muslim person would feel comfortable working in a non-kosher or haram butcher or deli, if you are hiring for such an establishment, it’s not up to you to decide whether a particular candidate would feel comfortable doing the job. But you certainly should mention whether or not the animals are slaughtered in accordance with a particular faith.
6. Is this your first child? (Especially frustrating for employers when the candidate is obviously heavily pregnant.)
But you still can’t ask. The number of children an employee has has nothing at all to do with their ability to carry out a particular job. If you hire someone with children, there are likely to be days when they need to stay home because one of their kids has a fever. That’s normal. And, frankly, a single person with no commitments carries a risk of them calling in “hungover”, at least in the Company.com offices. In fact, you should be aware that, even if a candidate goes into labor on your interview desk, you can’t ask if she’s pregnant. You can ask how you can help and what’s going on, though. If you’re interested in knowing what a potential employee’s future availability is going to be, then ask that question.
7. I see you graduated from State Tech — my brother is an alum, when were you there?
No, no, no, no, no. And no. Those things might be true statements, but asking someone to tell you their age, in whatever approximate or round-about way, is a “no.” A person’s age is not relevant to whether they can do a particular job. Sure, the job might be intended as a growth position so that in three years you have a successor, and the older candidate you’re interviewing might want to retire at some point, but you have to ask the question in a way that is related to the job, like “What are your long-term career goals?”
8. Are you a member of the National Guard?
Everyone loves a patriot. Employers don’t always love that the law requires that a veteran’s job be held open for them for up to five years while they are on active service. Reservists and Guardsmen are expected to participate in training events which might affect their availability, and there is a risk that those employees might be activated and shipped out to Afghanistan or Kosovo. But you cannot turn someone down for a job because they are in the military. What you can ask is whether the candidate expects, for any reason, to be away from work for an extended period of time. Most personnel in the National Guard or Reserves will tell you up-front that that’s what they do, it’s understandably a source of pride. It should not be a source of rejection from any hiring process.
9. Are you related to Bobby Employee who works here?
What if Bobby Employee is a stellar worker, always on time, always does a great job — what does that say about the candidate in front of you? That’s right: nothing. And what if Bobby is less-than-diligent? It still says nothing. Hiring someone because they’re related to someone else can get you sued by all the condidates you didn’t hire, who weren’t related to that person. So don’t even think about asking this question, and there isn’t a sneaky replacement for it.
10. Do you have a partner? What’s his/her name?
Okay, these questions are wrong for a couple of reasons, but the most important are that a) it’s none of your business whether a potential employee is single or has a harem of partners, so long as they do the job you pay them to do, and; b) asking a person their partner’s name can be construed as an inquiry about their sexuality. And honestly, does the fact that Betty Candidate’s partner is named Jim really going to help you decide whether to hire her? No, and it should be equally unimportant if Betty’s partner is Gertrude, or if Jim’s partner is Chuck.
The moment a candidate submits an application, they are protected by all of the equal opportunity legislation. You should know that you can be sued by someone who you don’t interview just as easily as by someone who you interview twice and then reject.
Many employers are using information in the public domain — essentially information that the candidate volunteers — to find answers to these kinds of questions. MySpace, Facebook, Google, blogs, Twitter … can all provide this data if it’s important to you and it’s out there. Just know that a lot of candidates will find that investigation intrusive and creepy. Having information that is volunteered or publicly available isn’t illegal, using it as the basis to deny a candidate employment could be.
The “protected classes” of race, color, religion, national origin, age, gender, familial status, sexual orientation, gender identity, disabilty, and veteran status, are the things to stay away from when asking questions and making hiring decisions.
If in doubt about whether the elderly, wheelchair-bound, Belgian cross-dresser would be a “good hire” for you, ask yourself if you’d have the same doubts if they were a middle-class white college graduate, or a black VP of another company, or an hispanic entrepreneur. Cut through the adjectives and focus on the qualities the candidate has, and whether they can fulfill the requirements of the job description, and you should be able to stay on the right side of the law.