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Interview questions may expose company to lawsuits

Monday July 21, 2008

“I think a fair share of small businesses don’t do the research they need to do to find out if certain interview questions are permissive or not, and then ask questions that could potentially lead to litigation,” says employment lawyer Keith Gutstein, a partner at Kaufman Dolowich & Voluck Llp in Woodbury.

For starters, it’s safe to say that you should stay away from questions that delve into areas protected by anti-discriminatory laws, suggests Diane Pfadenhauer, an employment lawyer and president of Employment Practices Advisors, a human resources consulting firm in Northport. These include such areas as gender, race, marital status, age, religion and disabilities.

“You want to avoid questions that might reveal disclosure of some protected information,” she notes. “Ideally you want to keep all questions relevant to the position and particulars of the job.”

So while you may be interested in knowing whether someone is married, pregnant or has children, it’s not information you must know to assess whether a job candidate is qualified, says Pfadenhauer.

Instead, you can ask questions related to job specifics, like “Can you be here at 9 a.m. every morning?”’ or “This job requires a certain amount of overtime, is that something you can accommodate?” she says.

Similarly, if you’re dealing with job candidates who might have to relocate, instead of asking specifically about their family situations, you can just ask, “What would relocation involve?” suggests Jo Prabhu of International Services Group, a Long Beach, Calif.-based consulting and placement firm.

“There are ways of getting to the point you want to get to most of the time, but you have to do it the right way,” says Dawn Davidson Drantch, director of employee relations and internal counsel for The Alcott Group, a professional employer organization in Farmingdale.

For instance, you can’t ask applicants whether they are U.S. citizens, but you can ask whether they are legally eligible to work in the United States, she says.

You also can’t ask whether they have any disabilities, but you can describe the essential job functions and then ask applicants whether they can perform those job functions with or without a reasonable accommodation, she notes.

Of course, there will be times in an interview when a candidate may voluntarily offer personal information, says Rita DiStefano of Portnoy, Messinger, Pearl & Associates Inc., a Syosset-based human resources and labor relations consulting firm. If that happens, try to sway the subject back to the job, skills, abilities, etc., she says.

To help keep you on course, you should have a written job description outlining the job requirements, suggests Drantch. This will help you better focus your questions.

Beyond that, if you’re using a written job application, don’t just pull one off the Internet, advises Gutstein. Often they are inaccurate, he notes, adding that he’s seen applications that still ask for birth dates.

To be sure, you definitely want to stay away from age questions, unless you are asking whether the applicant is old enough to be employed. In that case, you wouldn’t ask how old the applicant is, but rather if they are younger than 18, says Gutstein.

In addition, avoid asking applicants questions about past workers’ compensation, sick time or any other medical-related issues. Use common sense, and when in doubt, consult with legal counsel or a human resources expert.

Just don’t play guessing games. It can cost you in the end.


We talked about some questions you can’t ask. Here are some questions you might consider instead:

What do you like most and least about your current position?

Describe an achievement of which you are proud.

What keeps you challenged on the job?

How do you handle being given an assignment without complete directions?

How will you establish working relationships with your new co-workers and supervisors?

If you could create the ideal position, what would it include?

Source: Employment Practices Advisors

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