Five Interview Questions to Ask of Every Candidate

Five Interview Questions to Ask of Every Candidate

Ryan W. Green, Esq. Dinsmore & Shohl LLP Cincinnati

February 3, 2011

www.dinslaw.com

Hiring Process 

There are many components to the Hiring Process –

Needs assessment and position announcement

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Application Process

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Interviewing

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Selection

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Negotiating and Extending an Offer

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Post-Offer Activities

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Hiring Process 

As a Best Practice, each of these components needs to operate in harmony and with consistency –

Is the job description and announcement consistent with the needs assessment?

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Do the applicants selected for interviews match the job description and posting?

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Are the interview questions tailored to the job being filled?

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Are the offer and placement for the job posted and is the selected candidate the best qualified?

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Hiring Process 

The job interview is a critical component of the overall hiring process, where the person on paper takes life

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Why are you conducting an interview? –

To probe into the applicant’s experience, training and skills that were and were not included in the resume or application 

Do not just judge whether they are qualified, but how well qualified

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To evaluate whether the applicant would work well with the existing team

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To explain the position the applicant seeks

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To answer applicant’s questions about the job and the company

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Why are you conducting an interview? 

Why interview properly? –

To find the most qualified employee to meet the requirements of the open position

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To avoid destroying the at-will relationship

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To avoid a host of potential legal liabilities

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Learning Objectives 1. Learn how to avoid spending too much time on extraneous, inappropriate or simply unhelpful topics. 2. Learn the legal risks involved of hiring unqualified applicants when more qualified applicants are available.

3. Learn how to ask probing questions to determine whether an applicant's background is appropriate for the job.

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Learning Objectives 4. Learn how to determine whether an applicant may need an accommodation. 5. Learn how to uncover potentially problematic criminal histories and the legal risks associated with that line of questioning.

6. Learn what types of questions to avoid because they have a heightened risk of creating legal liability and creating direct evidence of discrimination.

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Five Primary Interview Questions 

This session is designed to provide insights about five interview questions that should be asked of every candidate, and why those may reduce the risk of legal liability.

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First, only lawful questions should be asked. –

Numerous topics should never be discussed in an interview, and many more can be covered but can be a very tricky inquiry.

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Five Primary Interview Questions 

Second, objective, probing questions about the candidates true experience and qualifications should be explored.

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Five Primary Interview Questions 

Third, every applicant should be asked whether they fully completed the job application and asked to supplement any unanswered questions.

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Five Primary Interview Questions 

Fourth, every applicant should be prepared to answer questions about any gaps in employment. The true reasons for lengthy gaps may be easily explained, or could be major red flags.

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Five Primary Interview Questions 

Finally, every applicant should be asked - in a lawful manner - whether they can perform the essential job duties

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#1 Ask Only Lawful Questions

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Ask Only Lawful Questions 

Why is this important from a legal standpoint? –

To avoid or reduce the risk of potential claims for discrimination

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Ask Only Lawful Questions: Race 

There are no job-related considerations that would justify asking an applicant a question based on race.

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Ask Only Lawful Questions: Race UNACCEPTABLE All

ACCEPTABLE None

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Ask Only Lawful Questions: Religion 

There are no job-related considerations that would justify asking about religious convictions, unless your organization is a religious institution, which may give preference to individuals of their own religion.

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Ask Only Lawful Questions: Religion UNACCEPTABLE Inquiry into applicant's religious denomination, religious affiliations, church, parish, pastor or religious holidays observed. (unless employer is a religious institution) ACCEPTABLE None (unless employer is a religious institution)

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Ask Only Lawful Questions: Gender 

Generally, there are no appropriate questions based on the applicant's gender during the interview process. Specifically: (a) Women are no longer protected under state wage/hour laws re: number of hours worked, lifting restrictions, etc. (b) It is unlawful to deny a female applicant employment because she is pregnant, or planning to have a child at some future date.

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Ask Only Lawful Questions: Gender UNACCEPTABLE 

Do you wish to be addressed as Mr.?, Mrs.?, Miss?, or Ms.?

Questions on marital status, number of children, child care arrangements, etc. are not appropriate. ACCEPTABLE •

Questions as to availability to work should be job-related: What hours can you work? What shift(s) can you work? Can you work on weekends and/or holidays?

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Ask Only Lawful Questions: Sexual Preference 

Under certain state and municipal laws, there are no permissible questions regarding an applicant's sexual preferences.

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Ask Only Lawful Questions: Sexual Preference UNACCEPTABLE Depends upon the jurisdiction

ACCEPTABLE Depends upon the jurisdiction

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Ask Only Lawful Questions: Personal Characteristics 

Height and/or weight restrictions -These questions may support gender or national origin discrimination claims unless their relationship to specific job requirements can be demonstrated.

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Ask Only Lawful Questions: Personal Characteristics UNACCEPTABLE 

What color are your eyes, hair?



What is your weight?

ACCEPTABLE Only permissible if there is a bona fide occupational qualification.

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Ask Only Lawful Questions: Age 

Under the EEOC's Age Discrimination Interpretive Rules issued in 1981, as amended, a request for date of birth on the employment application is permissible, with an appropriate disclaimer shown. In practice, this is not asked on applications.

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Ask Only Lawful Questions 

Any recruiting effort that is age-biased such as "recent graduate", or any question during the interview process that deters employment because of age is unlawful. The Age Discrimination Act of 1967 bars discrimination against persons age 40 or over.

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Ask Only Lawful Questions: Age UNACCEPTABLE 

How old are you?

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When were you born?

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When did you graduate from high school?

ACCEPTABLE 

Are you over 18?



Can you verify proof of your age if hired? © 2011 Dinsmore & Shohl LLP | www.dinslaw.com

Ask Only Lawful Questions: Arrest & Conviction 

Questions relating to an applicant's arrest record are improper, while questions of an applicant's conviction record may be asked, if job related. The Equal Employment Opportunity Commission and many states prohibit use of arrest records for employment decisions because they are inherently biased against applicants in protected classes.

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Ask Only Lawful Questions: Arrest & Conviction 

The EEOC has issued a Revised Policy Statement covering the use of conviction records by employers in making employment decisions: –

(a) The employer must establish a business necessity for use of an applicant's conviction record in its employment decision. In establishing business necessity, the employer must consider three factors to justify use of a conviction record: 

(1) Nature and gravity of the offense for which convicted;

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(2) Amount of time that has elapsed since the applicant's conviction and/or completion of sentence; and

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(3) The nature of the job in question as it relates to the nature of the offense committed.

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Ask Only Lawful Questions: Arrest & Conviction 

The EEOC's Revised Policy Statement eliminated the existing requirement that employers consider the applicant's prior employment history along with rehabilitation efforts, if any. The Revised Policy Statement requires that the employer consider job-relatedness of the conviction, plus the lapse of time between the conviction and current job selection process

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Ask Only Lawful Questions: Arrest & Conviction UNACCEPTABLE 

Have you ever been arrested?



Do not inquire about convictions that have been

lawfully sealed or expunged. 

Do you have any pending criminal charges?

ACCEPTABLE  

Have you ever been convicted of a crime? If so, when, where and what was the disposition of the case?

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Ask Only Lawful Questions: National Origin 

You may not ask an applicant where he/she was born, or where his/her parents were born. You may ask if the applicant is eligible to work in the United States.

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Ask Only Lawful Questions: National Origin UNACCEPTABLE  What is your national origin? Where are your parents from?  What is your maiden name?  What is your native language?  Avoid inquiry into use of how applicant acquired ability to read, write or speak a foreign language. 

ACCEPTABLE   

Are you legally eligible for Employment in the United States? Have you ever worked under a different name? Inquiry into languages applicant speaks and writes fluently may be

okay. (If the job requires additional languages)

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Ask Only Lawful Questions: Financial Status 

An interviewer should not ask if the applicant owns or rents a home or car, or if wages have been previously garnished, unless financial considerations for the job in question exist. Any employer who relies on consumer credit reports in its employment process must comply with the Fair Credit Reporting Act of 1970 and the Consumer Credit Reporting Reform Act of 1996.

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Ask Only Lawful Questions: Financial Status UNACCEPTABLE 

Do you own your own home?

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Have your wages ever been garnished?

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Have you ever declared bankruptcy?

ACCEPTABLE Credit references may be used if in compliance with the Fair Credit Reporting Act of 1970 and the Consumer Credit Reporting Reform Act Of 1996.

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Ask Only Lawful Questions: Military Record 

You may not ask what type of discharge the applicant received from military service. You may ask whether or not the applicant served in the military, period of service, rank at time of discharge, and type of training and work experience received while in the service.

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Ask Only Lawful Questions: Military Service UNACCEPTABLE 

What type of discharge did you receive?

ACCEPTABLE  What type of education, training, work experience did you receive while in the military?

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Ask Only Lawful Questions: Disability 

You may not ask whether or not the applicant has a particular disability. You may only ask whether or not the applicant can perform the duties of the job in question with or without a reasonable accommodation.

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Ask Only Lawful Questions: Disability UNACCEPTABLE  Do you have any job disabilities?  Have you ever filed for workers’ compensation?  Do you have any medical problems?  How much sick time/medical leave did you take last year? ACCEPTABLE  Can you perform the duties of the job you are applying for?  If a disability is obvious, you may ask about accommodations.

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Ask Only Lawful Questions 

Although federal EEO laws do not specifically prohibit any pre-employment questions, the EEOC does look with "extreme disfavor" on questions about age, color, disability, national origin, race, religion, gender or veteran status. Many state fair employment laws do expressly forbid certain types of questions.

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Ask Only Lawful Questions: Other areas of concern 

Reliability and attendance

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Organizational affiliations

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Ask Only Lawful Questions: Reliability and Attendance UNACCEPTABLE  Number of children?    

Who is going to baby-sit? What religion are you? Do you have pre-school age children at home? Do you have a car?

ACCEPTABLE  What hours and days can you work?  Are there specific times that you cannot work?  Do you have responsibilities other than work that will interfere with specific job requirements such as traveling?

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Ask Only Lawful Questions: Organizational Affiliations UNACCEPTABLE List all clubs, societies and lodges to which you belong ACCEPTABLE Inquiry into applicant's membership in organizations which the applicant considers relevant to his or her ability to perform job.

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#2 Ask Probing Questions to Assess Qualifications

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Is the Candidate Really Qualified? 

Resumes and applications can look and sound impressive, but people . . . –

Lie

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Exaggerate or stretch the truth (intentionally and not)

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Misunderstand what the job really is

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Is the Candidate Really Qualified? 

Ask questions about the candidate’s experience in the context of the requirements of the position being filled.

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Is the Candidate Really Qualified? 

Why is this important from a legal standpoint? –

Potential failure to hire and promote claims 

Hiring a candidate who is less qualified than a candidate in a protected class can lead to allegations of bias and discrimination



It is difficult to defend cases where the hired or promoted employee is not only clearly less qualified, but unqualified for the job

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Is the Candidate Really Qualified? 

Why is this important from a legal standpoint? –

Conducting a thorough vetting of job related qualifications will determine who is the best qualified individual

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What are the pros and cons of documenting the relative merits of candidate qualifications?

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“I just liked them better” or “they fit in better” can be a very difficult defense without more, even if there is no actual discrimination

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Is the Candidate Really Qualified? 

The interviewer should understand what the job requirements are for the position being filled, be prepared in advance by reviewing applications and resumes and have questions tailored to understand the experience and relative differences in candidates’ qualifications

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#3 Be Sure the Application is Complete

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Why Have a Complete Application? 

Why have an application if it is not going to be complete? –

Applications are the source of much information useful to the interviewer to evaluate the candidate’s experience

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Why Have a Complete Application? 

Why have the candidate acknowledge the application is complete? –

Failure to disclose certain information could support a later dismissal of an employee

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Failure to disclose certain information can lead to the defense of “after-acquired evidence” if litigation ensues

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Why Have a Complete Application? 

The application is standardized and is the candidate’s voice –

This provides objective information about the qualifications of an applicant that can be readily compared at a later time, and by others, of the applicant pool’s qualifications and experience

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#4 Inquire about Gaps in Employment

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Why are Employment Gaps Important? 

This is a particularly important factor to consider in the current economic climate

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As we exit the Great Recession, it will be especially difficult and important to evaluate whether gaps in employment suggest an otherwise capable employee caught up in the economic tide, or, a bad employee that would have been unemployed for periods of time in spite of the economic conditions.

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Why are Employment Gaps Important? 

Asking about such gaps will often lead to the free disclosure of important information –

For example . . . “I was fired for punching my boss – but he deserved it and I had trouble finding another job.” 

This would be helpful information to know in making a hiring decision

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Why are Employment Gaps Important? 

But be careful . . . –

For example . . . “I had some medical issues and had to be off work.” 

DO NOT follow up and ask what was wrong, etc.

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#5 Can you Perform the Essential Job Duties

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Disability Inquiry 

We talked about this before . . . –

There is a very limited context in which you can inquire about physical limitations 

Can the applicant perform the essential job duties

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Disability Inquiry 

Know what the essential job duties are –

It is somewhat problematic to determine whether someone can perform the essential job duties if they are not defined, poorly defined or the interviewer is unaware of what they are

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Disability Inquiry 

What about the TMI (too much information) interviewee? –

Everyone who interviews applicants will occasionally encounter people who provide far too much personal information

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Resist the opportunity to engage in a detailed discussion about what limitations a person may have and direct the conversation back to the job duties and the individual’s ability to perform them, with or without a reasonable accommodation

© 2011 Dinsmore & Shohl LLP | www.dinslaw.com

Practical Tips 

Prepare and update job descriptions

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Clearly communicate the job requirements to applicants

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Clearly communicate the job requirements to interviewers

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Ensure job applications are complete

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Train, train, train interviewers to follow these tips and strategies

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Find the most qualified employees as possible during the interview

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QUESTIONS?

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Ryan W. Green, Esq. Colleen P. Lewis, Esq.

www.dinslaw.com