Interviews And The Law
Getting The Information You Need Without Crossing The Line
By Jerri L. Ledford© Pro2Net Corporation. November 2, 2000.
Nov. 2, 2000 (Pro2Net) - Most human resources professionals know that when interviewing, certain questions -- those related to a candidate's personal life -- are potentially grounds for a discrimination lawsuit.
Questions regarding race, age, color, sexual orientation, religion and national origin are illegal according to Title VII of the Civil Rights Act. Questions about age are illegal under the Age Discrimination and Employment Act. And the Americans with Disabilities Act forbids questions about disabilities.
"Often, however, human resources professionals are not the ones doing the interviewing," said Anne Brooks, director of human resources for Seattle, Wash.-based Viathan Corp. (www.viathan.com). "It may be a hiring manager or department manager doing the hiring," she says. These professionals may not be as knowledgeable about the laws surrounding interviewing techniques.
Cut the Small Talk
If those who are doing the hiring are not as aware of the laws, they may innocently ask the wrong questions. For example, during the first few minutes of an interview, it's common for the interviewer to make small talk to help break the ice or put the candidate at ease. The conversation might go something like this:
"Thank you for coming this afternoon. Please have a seat. Can I get you some coffee? So, tell me where you're from."
Or perhaps midway through the conversation the interviewee volunteers the information that they attended the same college that the interviewer did. The natural reaction is for the interviewer to say, "Oh, what years were you there?"
However, those kinds of innocent questions are off limits, no matter how innocuous they may seem. "What it all comes back to is 'can you do the job,'" said Pete Francisco, human resources manager for Herndon, Va.-based, iKimbo (www.ikimbo.com). "Most of the time people will offer up that kind of information without being asked if they are at ease."
Even when offered freely, personal information can spell bad news for the interviewee, especially if the candidate offers information that they feel caused them not to be hired. "I always suggest that when going into the interview process to have the questions you need answered written out," said Viathan's Brooks. "Planning ahead is important. And if you're good at interviewing then when the personal information is volunteered you can divert away from it and back to the information that is relevant to the position."
When You Have to Know
Despite the provisions of the law that there should be no reason to need personal information, occasionally the need for such information arises. For example, Gary Kaplan, president of Pasadena, Calif.-based, Gary Kaplan & Associates (www.gkasearch.com) said that he was asked to find several key human resources professionals for positions located at remote mine sites. "I had a very valid reason for asking questions that would normally be inappropriate," Kaplan said. "I needed to understand their position because of the situation. It was like walking into a virtual mine field."
To help the candidates understand their position and the extreme conditions of the jobs that needed to be filled, Kaplan explained up front that he would be asking questions that were normally off limits, but that the severity of the positions made it necessary to know the answers. Even though there was a verifiable need to know the answers, Kaplan's questions could have landed his firm in a sticky legal situation.
There are some valid situations where certain qualifications need to be met for a job. One example that is often cited is for the position of locker-room attendant. Because of the gender requirements of that position, it is okay to ask a candidate if they are currently going through a sex change, or what gender (if it isn't obvious) they may be.
However, most positions don't specifically require asking questions that are otherwise prohibited. Still, it occasionally becomes necessary to know some of the more intimate details of a candidate's personal life. "Sometimes you're just in a situation where pragmatism prevails," Kaplan said.
If it is necessary to know certain personal answers, phrase your questions in a way that you can find out the information that is relevant to the job. For example, if you need to know how a candidate's family would affect that candidate's ability to work weekends, you might ask, "is there any reason that you wouldn't be able to work weekends often?"
Usually, when such a question is asked the candidate will volunteer the personal information that you're looking for in the form of an answer such as, "my family understands that I often need to work long hours," or, "I have three children and I'm a single mother. Weekends might be hard for me."
Educate the Whole Team
Finally, one of the most important issues surrounding interviewing is that all members of the interviewing team -- from human resources professionals to upper management -- are well trained in the skills necessary to conduct an informative interview.
Kaplan suggested that members of the interviewing team be taught how to conduct behavioral interviews. A behavioral interview differs from traditional interviews in that they allow the interviewer to measure capability. The interview is conducted in such a manner that questions asked are specific to the position being filled. All other information is gained through an application form that all interviewees are asked to fill out.
"Educating the people who are doing the interviewing is ideal," said Viathan's Brooks. "Most human resources professionals have received their certification and would have taken many classes (on interviewing), but it's often the other people doing the interviewing that make mistakes. The onus is on the interviewer to make sure that the questions asked during an interview are relevant to the position."
