Interviewing Tips for Avoiding Sensitive Legal Issues

job interview, small business hiring, new employees, hiring, lawyer, attorney, interviewSmall businesses have recently seen an increase in the hiring of new employees. In fact small business hiring is at the highest level it has reached in eight years. Hiring new employees allows small businesses to help the U.S. economy grow, and also lowers the national unemployment rate. However, small business owners must be careful not to ask the wrong questions when interviewing potential hires, in order to avoid possible legal ramifications. Though there are not specific questions that an employer is legally prohibited from asking, there are best practices that a prudent employer should employ in order to make sure that interview questions are not phrased in a discriminatory manner.

Subjects to Avoid During Interviews

There are a variety of topics/questions that an employer should avoid discussing during an interview. First, you should avoid any topics or questions that could be considered as discriminatory under Title VII of the U.S. Civil Rights Act of 1964.

This seminal law was passed to prevent discrimination throughout the country, and provides for protected classes of citizens that cannot be discriminated against based on their color, religion, sex, national origin, and race. Furthermore, in Illinois, additional protected classes are covered providing for the prohibition of discrimination based on a person’s marital or familial status or sexual orientation.

When interviewing a potential employee, you must be careful to avoid questions and discussions that could be interpreted as discriminatory against a member of any of these protected classes. Not doing so could result in potential lawsuits based on the accusation of a violation of Title VII or other federal laws governing the prevention of discrimination.

Avoiding potential discrimination of protected classes will not be difficult if you carefully craft your questions to avoid implied discrimination. For example, if the position for which you are interviewing requires ample traveling, there are two potential ways that such questions could be asked. It would be ill-advised to ask if a person has any kids, or other familial situations that would prevent them from habitually traveling. This could be considered discrimination based on familial status. However, simply asking the potential hire if they are okay with traveling would be a sufficient way to phrase the question without being discriminatory.

 It is extremely important for employers to be especially sensitive about questions regarding the ability of a potential hire to adequately perform the job for which they are being interviewed. The Americans with Disability Act (“ADA”) provides extremely broad protection for citizens with disabilities. An employer has the right to ask whether a candidate will require accommodations to complete a job. However, the physical testing of a potential hire’s capabilities must be verified by a third party as being fundamental to the position. Selectively imposing such tests that have not been evaluated by a third party could result in accusations that an employer has violated the ADA.

Interviewing Best Practices for Employers

An employer should review the above mentioned legislation in order to have a good understanding of federally protected classes in order to avoid activity that could be interpreted as discriminatory. Furthermore, always ask yourself the following questions when drafting interview questions. First, will the question/topic have the effect of secluding a member of a protected class from the potential hire pool? Second, is the information being solicited truly necessary for determining the interviewee’s ability to adequately perform the job in question?

Prudent small business owners should not interview potential new hires with out doing their homework. Instead, all employers should be aware of federal and state anti-discrimination laws, and the protected classes covered, in order to avoid potential lawsuits and/or claims of discrimination in the hiring process. Contact the small business law attorneys here at the Gierach Law Firm in Naperville, Illinois for all of your small business law questions or issues.