Interview Guidelines
Avoiding Unlawful Pre-Offer Hiring Procedures
IMPORTANT NOTICE
The following guidelines provide direction for complying with state and federal employment laws. Failure to comply with any employment law could result in legal action against the company. The following is informational only and does not in any way constitute legal advice. If you have any further questions regarding your compliance with employment law or if you need additional legal guidance, you should seek the advice of an attorney.
Federal and state laws prohibit discrimination in any aspect of employment, including the hiring process, on the basis of race, color, religion, gender, national origin or age.
You may never ask any questions related to race! You may not ask for any photo or require an applicant to affix a photo to the application or resume. You should never make a written comment of any characteristic or feature related to race in your interview notes.
On occasion, an applicant may dress or have physical characteristics indicating that he or she is a member of a particular religious organization. You may not ask direct questions about the applicant’s religion, but you may explain the hours of employment and job duties and ask if the applicant is willing and able to perform within those job requirements.
You may not ask, “What is your religion?” or “What holidays do you observe?” You may ask, “Are you able to work weekends?”
Prohibited questions related to gender include questions about marital status, children, pregnancy or related medical conditions.
Prohibited examples:
“Are you single or married?”
“Do you have children?”
“Do you plan on having children?”
“What are your child-care arrangements?”
“What does your spouse do?”
“Do you have healthcare coverage through your spouse?”
Permitted examples:
“Would you be willing to relocate, if necessary?”
“Would you be willing to travel for the job?”
“Are you able to work overtime?”
Sometimes an applicant may have an obvious foreign accent or characteristics. You may not ask questions likely to identify the applicant’s national origin.
Prohibited questions:
“Where do you come from?”
“How long have you been in the U.S.?”
“Are you a U.S. citizen?”
“What is your native language?”
Permitted questions:
“What languages do you speak, read or write fluently?”
“Are you authorized to work in the U.S.?”
The Age Discrimination in Employment Act (ADEA) prohibits discrimination in any aspect of employment, including hiring, against persons over the age of 40. You may not ask, “How old are you?” or “What year did you graduate high school?” You may ask, “Are you over 18?”
In advertising for a position or at any time during the application process, you also may not specify any age preference or limitation. The Equal Employment Opportunity Commission has declared certain phrases discriminatory, so your advertisement, posting or application should not contain the following, just to name a few: “college student,” “retiree,” “ages 18-25 (or any other specified age),” “young” or “youthful.” The phrases “recent graduate” and “young-thinking” should also be avoided. Alternative suggestions would be “energetic” or “youthful person of any age.”
A disability is an impairment that “substantially limits a major life activity.” This includes both physical and mental disabilities and illnesses. The Americans with Disabilities Act (ADA) prohibits any questions “likely to elicit” information about a disability. In other words, you may not ask a question to which the answer might reveal a disability. You may, however, ask whether the applicant is “able to perform the necessary functions of the job.”
If the applicant says “no,” then all you may ask is whether the employee could perform the job with reasonable accommodation and, if so, what type of reasonable accommodation would be required. You may also ask the applicant to describe or demonstrate performance.
If the applicant voluntarily reveals information about a disability, then you may ask only whether the applicant could perform the job with reasonable accommodation and, if so, what type of reasonable accommodation would be required. You may also ask the applicant to describe or demonstrate performance. If the applicant says that no reasonable accommodation is required, then you may not ask for further details about the disability.
Example: An applicant voluntarily reveals that he has diabetes and will need frequent breaks to test and take insulin. You may ask how often he will need breaks and how long the breaks must be, but you may not ask any other questions about his diabetes.
If the applicant has an obvious disability (e.g., wheelchair, hearing aid, etc.), then you may ask whether the employee requires reasonable accommodation and, if so, what type of reasonable accommodation would be required. If the applicant says that no reasonable accommodation is required, then you may not ask further questions about the disability, although you may ask the applicant to describe or demonstrate performance. However, you may never ask for specific information about the disability.
Prohibited examples:
“Do you have any disabilities?”
“Have you had any recent history of illness or operations?”
“How many sick days did you take at your previous employment?”
“What medications are you currently taking?”
“Are you able to stand, walk,
lift, etc.?”
(Without naming the job-related requirement)
Permitted examples:
“Are you able to perform the essential functions of the job?”
“The job requires you to lift boxes up to 25 pounds. Are you able to perform that function?”
Impairments such as poor vision or hearing which do not “substantially limit a major life activity” and only temporary injuries are not disabilities and, therefore, are not protected by the ADA. If an applicant has an obvious impairment, you may ask if the applicant is able to perform the job duties with reasonable accommodation, but you may not ask any questions that might reveal an underlying disability that contributed to or caused the impairment.
Example: An applicant with a broken leg comes in to interview. You may ask her how she broke her leg, but you may not ask, “Do you break bones easily?” or “Do you heal quickly?” as those questions may reveal an underlying disability. More importantly, if the applicant simply has on a cast and does not volunteer that she broke her leg, you should not ask about what happened to the leg as it may be the result of a surgery required by an underlying disability. All you need to ask is whether she can perform the duties of her job with reasonable accommodation.
Example: An applicant with obvious poor vision comes in to interview for a computer position. You may ask whether he will require reasonable accommodation to perform the job. He says that he will require accommodation. You may ask, “What will you need?” and ask specific questions about what tools he will need, but you may not ask what causes his poor vision.
A former drug addict/alcoholic or a current addict who is no longer using is protected under the ADA. You may ask questions about current drug use, but not questions likely to elicit information about a past drug addiction or alcohol abuse. If the applicant is currently participating in a rehabilitation program, as long as the applicant is not currently using, then he or she is protected under the ADA.
Example: You may ask an applicant, “Have you ever used illegal drugs?” or “When was the last time you used illegal drugs?” You may not ask, “Have you ever been addicted to illegal drugs?” or “How often did you use illegal drugs?” as those questions are likely to lead to answers about an addiction. To be safe, you should restrict your questions to current use only.
Example: You may ask an applicant, “Do you drink alcohol?” or “Have you ever been arrested for driving under the influence?” You may not ask, “How often do you drink alcohol?” or “Have you ever been involved in a rehabilitation program?”
You may not ask questions about an applicant’s legal drug use because it is likely to elicit information about a disability. Thus, you may not ask, “What medications are you currently taking?” However, if the applicant has tested positive for illegal drug use as the result of a pre-screen drug test, you may ask the applicant to list the medication he or she are currently taking in order to validate the test results. For example, you may ask, “What medications have you taken that might have affected your test results?”
You may not ask an applicant about job-related injuries or whether he or she has ever filed a worker’s compensation claim as those questions are likely to lead to information about a disability.
You may state your attendance requirements and ask whether the applicant can meet those requirements. You may also ask generally about an applicant’s prior attendance record, but you may not ask specifically how many sick days the applicant used at his or her previous employment, or how often the applicant is sick in a typical year.
Any questions you cannot ask an applicant directly, you may not ask a third party. This includes a former employer, family member, friend or any agency that services worker’s compensation claims.
Would you, or do you know someone that could benefit from this information?
Send us an email or call us at 563.355.HIRE (4473) with the contact information
and we will include add you to our email list!