Question:

I am currently interviewing candidates for an administrative assistant position, but I am concerned that a single parent will not be willing to work the required hours. What questions can I ask during the interview?

Answer:

Although employers more often think of liability related to their employees, liability can also arise with job applicants. An inappropriate question asked in a job interview can result in a claim that an applicant was not hired for discriminatory reasons. To avoid liability at this stage of employment, there are several areas where questions either must not be asked or caution must be exercised.

A job applicant can have a claim against an employer if the employer subjects the candidate to discrimination or harassment based on his or her membership in a protected class. The California Fair Employment and Housing Act has a long list of protected classes which include sex, gender, gender identity, race, color, national origin, ancestry, citizenship, disability, medical condition, age, religion, creed, pregnancy, sexual orientation, marital status, and veteran status. Questions asked in a job interview related to these protected classes can result in liability.

In your example, if you have concerns about an employee’s ability to work the hours needed, questions should be asked that are specific to those concerns. You may explain to the applicant that the position requires overtime and ask if he or she can work those extra hours. But you may not ask the applicant “Do you have children? Will that interfere with your ability to work overtime?” because this may implicate gender or marital status discrimination.

An employer may not ask questions about an applicant’s race or ethnicity or ancestral background. This precaution may seem obvious to employers. But many employers who, for example, require a bilingual Spanish-speaking employee may ask a candidate “Is Spanish your native language?” or “Are you from Mexico?” These questions would be considered discriminatory. Instead, the interviewer may ask, “How did you learn to speak Spanish fluently? Do you also read and write Spanish fluently?”

An employer may want to ask questions to determine if a candidate is a legal immigrant, or may just be curious about the candidate’s name. But an employer may not ask an applicant questions about national origin, such as where the person was born or whether the applicant is a U.S. citizen. Even a question like “That’s an unusual name. Where are you from?” is inappropriate. Instead, the interviewer may ask the applicant if he or she can provide verification of eligibility to work in the United States.

Age is another area where very limited questions may be asked. An employer must never ask an applicant questions about age, date of birth, or the year of high school graduation. The only age specific question that may be asked is whether the applicant is over the age of 18.

Since marital status is a protected class, an interviewer may not ask an applicant if he or she is married. Indirect questions such as “Is that your maiden name?” or “Should I call you Ms. or Mrs.?” are just another way of asking if the person is married or single and are prohibited.

Questions about religion are strictly taboo, whether it is as bold as “What religion are you?” or as innocuous as “Have I seen you in church?”

An employer may be in a situation where the candidate has an obvious disability. Questions that may be asked are limited to the individual’s ability to do the job. For example, the interviewer may describe legitimate requirements of the job such as lifting, driving, traveling, and ask if the individual would be able to satisfy those requirements. But the employer may not ask the applicant if he or she has a disability.

Sometimes applicants volunteer information during the course of an interview. The applicant may say “I just had a baby,” or “I hope that my age doesn’t affect my chances of getting this job.” The fact that the applicant raises the issue does not give the employer license to ask questions in these areas. An interviewer should simply respond that those facts will not be factors in the hiring decision.

These are just some examples of questions that an interviewer must steer clear of. To avoid bias, it is a good practice to ask all applicants the same questions. It is also helpful to write down the questions that will be asked of the applicants in advance to avoid any inadvertently inappropriate questions. Anyone who works for you and conducts job interviews should be trained in what they can and cannot ask job applicants.
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