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Legal Insider: What an Employer Cannot Ask in Interview

by John V. Berry — July 28, 2014 at 3:00 pm 1 Comment

 Berry&BerryRevised

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Many job applicants are aware that potential employers will try to gather as much information as possible about them during an interview. However, job applicants should be mindful of illegal questions asked during the job interview.

Often times such questions are used by employers in an attempt to obtain information that is improper to consider in the hiring of job applicants. Any questions that will reveal a job applicant’s race, religion, marital status, age, or sexual orientation are considered illegal. The following are some examples of illegal questions a potential employer may ask a job applicant:

Do you plan to get pregnant in the near future? This question may lead to pregnancy discrimination.

I see you limping?  Is there anything wrong? This question may lead to disability discrimination.

How many children do you have or plan to have? Who in your household will care for your children while you are at work? How old are your children? These questions may lead to pregnancy and sex discrimination.

Do you mind giving us your Facebook account login information to see if you are a good fit? This question may lead to all forms of potential discrimination and some state laws protect employees against turning over social media information.

I like your accent. Where is that from? This question may lead to national origin and race discrimination.

Have you ever been arrested? Employers can sometimes ask about a prospective employee’s conviction record, but they risk raising discrimination issues by asking this type of question during a job interview.  Some states have specific prohibitions on these types of questions.

Are there any specific religious holidays that you need to observe requiring you to take time off? This question may lead to religious discrimination.

Are you married or planning to get married anytime soon? This question may lead to gender discrimination.

How many sick days did you take in the last two years?  This question may lead to disability discrimination and other issues.

How well do you work with women? This question may lead to gender discrimination.

The following are some guidelines to help employers avoid legal problems following a job interview:

  • Avoid asking a job applicant the above potentially discriminatory or illegal questions.
  • Create a standard list of questions that all candidates will be asked during the interview process. The more that such a process is standardized, the better the defense may be to later claims of bias and discrimination.
  • Have employment counsel or human resources review the list of interview questions for job applicants prior to the interview process.
  • Interview prospective employees with two or more personnel present during the interview. This helps to ensure that if a claim is later filed by an unsuccessful applicant that there is more than one witness to respond to claims made about the interview process.
  • Don’t ad lib during the interview process and ask questions that could be misconstrued, such as those listed above.
  • Avoid making excessive promises about the potential position during the interview that could potentially lead to a breach of contract claim.  For instance, avoid promises such as “the person that is hired for the position can expect to stay for the rest of his or her career as long as he or she performs well” or that “the position is permanent.”

If a job applicant was asked a potentially discriminatory or illegal question during an interview, he or she may have legal recourse against the potential employer.  Our law firm represents and advises employees and employers in legal matters related to employment interviews. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  Please also visit our Facebook page at https://www.facebook.com/BerryBerryPllc

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