A. IF YOU STAY AWAY FROM ASKING THESE QUESTIONS, YOU WILL ALSO STAY AWAY FROM LIABILITY.
Many small employers are not in the position of having a designated human resources department. With smaller budgets to work with many of these companies have no human resources department or have one person masquerading as a human resources individual. To the prospective employee, it matters little if your company cannot afford to hire a trained and competent human resources professional. It only matters if the person at your company asks legally permissible questions in an interview. All too often, I get feedback from new and existing clients that certain questions were asked in an interview that requested someone's age or racial background. My reaction is often: How could someone be so derelict in their responsibilities as to ask those questions? Often, the answer is simply that they thought they could and nothing more. In most cases, these questions were not asked because of any existing racial animus or with the intent to discriminate but for the sole purpose of acquiring information.
At the Katz Law Group, we assist small companies who operate without an hr department to find a way to comply with both state and federal law. Compliance with state and federal law often begins with the first employment interview. Having said this, let us review some of the questions that employers should avoid at any interview as follows:
1. How old are your or what class were you in at Needham High School? The first question is simply not legal so do not ask it ever. The second question relating to high school class is nothing more than a transparent end run around the first question and is also equally illegal. The best policy to adopt in this case is not to ask the question at all so as not to violate The Age Discrimination in Employment Act (ADEA) which expressly prohibits interview questions that indicate age discrimination.
2. Would you have any issue with taking orders from younger employees? Another really dumb question but a trap that employers fall into over and over. The same problem arises here as in the previous section. With this question, you are going in a direction of asking for information relating to age which could also indicate age discrimination so stay away from this question altogether.
3. Have you ever been convicted? Not a good question although the purpose of it is understandable. Depending on the position where honesty and integrity are central to that type of employment can an employer ask questions as it relates to convictions of fraud.
4. If someone has an accent do not ask where they are from. This could give rise to national origin discrimination which is also prohibited under federal law. And, never ask if English is a prospective employee's first language.
5. What are you currently making? Although this may be a permissible question in some jurisdictions it is not permissible in the Commonwealth of Massachusetts. The way to get around this is to ask for an employee's particular salary expectations.
6. Don't ask perspective female employees if they plan on having children or how many children they have? This question goes smack dab into gender and pregnancy discrimination and discriminatory hiring practices.
7. If someone appears to be disabled don't ask them if they are disabled. I realize this may sound obvious to you but, in many instances, employers ask this question so as to obtain what they consider to be valuable information. The problem is that you have just violated several federal laws in seeking this information so it would be best not to ask these questions altogether.
8. Marital or military status. As to marital status, this is a no-no in an interview. As to military status, don't go there either.
As an employer or prospective employer be sure to ask yourself one essential question: Were any of the above questions necessary for establishing whether someone was qualified to do the job? The answer is clearly no. The focus of the employment interview should always be directed to job history and qualifications and not on drilling down on someone's religious affiliation or racial background. Not only is it illegal, but you may miss out on an excellent employee because you were misguided in what you considered to be important and illegal information. At the Katz Law Group, we get lots of inquiries from small business owners who need our assistance in this area. We can help your company as well. Call us at 508-480-8202 for further information on how to avoid asking the wrong questions in your next job interview.