During the course of conversing with a job candidate, asking a question such as “Are you married?” can seem perfectly natural. In the eyes of the law, however, the question is not innocent – it is illegal. Regardless of intention, hiring managers who venture into “off limit” territory put their company at risk for legal action because an applicant can argue that certain questions were used to discriminate against him or her.
No company wants to deal with a lawsuit, but such action can be especially troublesome for small businesses. Such firms likely do not have a legal team at their disposal and will need to spend their already limited time and money to assemble one. This redirection of resources may greatly affect the company’s ability to operate and grow. Bouncing back may not be quick, easy, or even possible.
Yet while hiring managers at small businesses really need to take the seriousness of the issue to heart, many fall short. Recent CareerBuilder research showed that nearly 1 in 5 small business employers (18 percent) have asked a question in an interview, only to find out later that it was illegal. Likewise, the following questions are illegal for hiring managers to ask; yet, when asked if they knew if these questions were illegal, at least one third of hiring managers in small businesses indicated they didn’t know:
- What is your religious affiliation?
- Are you pregnant?
- What is your political affiliation?
- What is your race, color or ethnicity?
- How old are you?
- Are you disabled?
- Are you married?
- Do you have children or plan to?
- Are you in debt?
- Do you social drink or smoke?
Preparation now can prevent problems down the line. Consider these actions to rid interviews of illegal questions:
- Know the sticky areas. The U.S. Equal Employment Opportunity Commission states, “It is illegal for an employer to discriminate against a job applicant because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.” Avoid questions that reveal such information.
- Train all interviewers. If others from your company will be asking questions, be sure they know what types of things they can’t ask. Better yet, have them run a list by you beforehand. Sticking primarily to preplanned questions prevents treading into murky water and helps ensure equal treatment of all being interviewed.
- Focus on the position. Often the legality of the question is in how the interviewer asks it. For instance, asking candidates where they live could be interpreted as a way to discriminate based on their location and is therefore illegal. Asking them if they are willing to relocate, however, is fine. Similarly, go ahead and inquire whether or not an applicant will be okay putting in extra hours occasionally, but don’t ask if she has adequate childcare arrangements to handle overtime. Remember that your task consists of finding someone capable of performing essential duties for your small business, not evaluating a candidate’s personal life.