Employment Interviews
Interviewing an applicant for an open job position is an important part of the hiring process. Information gained from applicant interviews contribute to a more informed hiring decision.
There are several interviewing techniques that can help the employer determine whether an applicant’s skills, knowledge, abilities and work experience meet job requirements.
Interviews should always be conducted in a legally compliant business manner with questions relevant to job requirements and specific industry requirements while recognizing the organization’s culture and mission.
To avoid claims of discrimination, hiring managers should receive training and education on how to conduct legally compliant employment interviews. Discrimination can occur during pre-employment interviews as a result of direct, purposeful disparate treatment between applicants, i.e., applicants are treated differently because of their race, color, religion, national origin, sex, disability, or age. For example, disparate treatment occurs when employers do not ask the same questions of all applicants. Discrimination also occurs when employers engage in hiring practices that have the effect of excluding members of protected classes. While it may not have been the employer’s intent to discriminate, the employment practice has an adverse impact on members of a protected group with the effect of a disproportionally higher percentage of applicants being rejected from employment consideration.
Employment Laws
Federal Laws
The United States Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Most employers with at least 15 employees are covered by EEOC laws and employers with 20 employees are covered in age discrimination cases.
The most familiar federal laws that protect rights of applicants in the hiring process are:
- Title VII of the Civil Rights Act of 1964 as amended prohibits discrimination based on race, color, sex, race, religion or national origin.
- The Age Discrimination in Employment Act (ADEA) prohibits questions about a person’s age.
- The Americans with Disabilities Act (ADA) protects qualified individuals with disabilities from discrimination in employment.
Employers are prohibited under ADA from asking applicants during pre-employment interviews about a disability, including its nature or its severity. ADA requires the employer to isolate an employer’s consideration of an applicant’s non-medical qualifications from any consideration of the applicant’s medical condition. An employer may ask only if there is anything that precludes the applicant from performing, with or without a reasonable accommodation, the essential functions of the position for which the applicant is applying.
Title VII and ADEA specifically prohibit discrimination because of race, color, religion, sex, national origin, and age. Pre-employment inquiries that express, directly or indirectly, any limitation or discrimination on the basis of race, color, religion, national origin, sex, disability, or age unless based on a bona fide occupational qualification are therefore prohibited. Accordingly, the employer must not ask any questions of the applicant whose answers would identify the applicant as having protected class characteristics.
Bona Fide Occupational Qualification (BFOQ)
In certain narrow circumstances, employment practices that would constitute discrimination against individuals with protected characteristics of religion, national origin, sex, or age are allowed when reasonably necessary for the normal performance of duties in the normal operation of that particular business. This bona fide occupational qualification exception is an employer’s defense to acknowledged discrimination. It is the employer’s responsibility to prove that the qualification required for the job is necessary for job performance and that there is no reasonable alternative with a lesser impact on the protected classes. There is no bona fide occupational qualification for race or color discrimination.
State Laws
State laws can provide broader protections than federal laws. An employer’s due diligence will determine requirements for the employment laws of the state in which his company operates.
Interview Techniques
While traditional interviews are conducted face-to-face or by telephone, today’s various technologies allow interview practices to include virtual interviews, web-based interviews, or applications on mobile devices.
The most commonly used interviewing technique is a structured interview that asks a specific set of questions of all applicants for the open job position. This is the most straight forward approach to interviewing applicants. The format of a structured interview provides a consistent practice of asking all applicants the same questions in the same manner. By keeping the focus on job requirements and the applicant’s work history, the structured interview aids in defending the employer against claims of discrimination in hiring.
Interview Questions
When preparing for the interview, the interviewer should format a series of interview questions based upon the job description of the open position. Developing questions in this manner keeps the focus on the qualifications required to do the job. With the focus on job appropriate questions, the interviewer can evaluate the applicant’s skills and experience and avoid topics of discussion that could be interpreted as inappropriate or discriminatory.
How the interviewer asks for information may determine what information is returned or how much information is returned. The language used in formulation of the question, that is, the word choices and phrasing, contribute to how the applicant understands what is being asked and how he formulates his response.
As example, asking open-ended questions encourages the applicant to expand upon on his work experiences, skills, and abilities in his reply. Questions that begin with “How” or “What “or “When” are illustrative of the types of open-ended questions that facilitate a detailed response.
A close-ended question on the other hand calls for a short answer response, generally a “Yes” or a “No”. This type of question is in direct response to a specific question and does not require an applicant to provide additional information. Questions that begin with “Do” or “Have” are examples of closed-ended questions that require only confirmation of the posed question.
At no time should an interviewer phrase a question to lead an applicant towards a response that could be construed as discriminatory or biased.
The operating guideline behind any questions asked of an applicant during a pre-employment interview is whether there is a legitimate business necessity for asking such questions. Employers should ask themselves:
- Will the answer to the question have a disparate effect in screening out members in a protected class?
- Is the information being asked for necessary to evaluate the applicant’s qualification to perform the job?
- Is this question permissible on the basis of bona fide occupational qualification?
- Would this question screen out a qualified candidate because of a disability before he/she can demonstrate ability to perform the job?
The intent behind the questions and how the information is used by the employer are important criteria in determining whether the questions are appropriate legal compliances.
To help avoid claims of discrimination, employers should consult with appropriate professional counsel to formulate appropriate and legal pre-employment inquiries or to review and revise existing interview practices.
Other Considerations
Interviewers must not make statements during an interview that could be construed as creating a contract of employment. Information that is provided for the open position should be limited to the job specifications and the job description. An interviewer should avoid using terms that imply or could be interpreted as offering long-term employment, or a career opportunity.
If an interviewer should ask a question that is inappropriate or illegal, the applicant is not required to answer that question. If the applicant does feel obligated to reply, the applicant’s answer cannot be used in discriminatory treatment of the applicant as an individual or in discriminatory evaluation and qualification of the applicant for the job position.
If an applicant volunteers information that is inappropriate or illegal, the interviewer should not pursue the topic, and redirect the interview to appropriate discussion issues in qualifying an applicant to job duties. The interviewer must disregard any volunteered information. Such information cannot be used in the applicant qualification and selection process for the open job position.