We all know how litigious our society has become in
the area of employment-related issues. Every recruiter, hiring manager,
executive, and department manager must realize that asking the wrong
questions or making improper inquiries can lead to discrimination or
wrongful-discharge lawsuits, and these suits can be won or lost based on
statements made during the interview process. Thus, it is important to
incorporate risk management into your interviewing process to help
minimize your firm's exposure to employment practices liability.
You, or your company, could be accused of asking
improper questions or making discriminatory statements or comments that
reflect bias. It is also possible to make assurances or promises during
interviews that can be interpreted as binding contracts. Recognizing
these potential danger areas is the best way to avoid saying the wrong
thing during interviews.
To minimize the risk of discrimination lawsuits, it�s
important for interviewers to be familiar with topics that aren�t
permissible for questioning. For example, you shouldn�t ask a female
applicant detailed questions about her husband, children and family
plans. Such questions can be used as proof of sex discrimination if a
male applicant is selected for the position, or if the female is hired
and later terminated. Older applicants shouldn�t be asked about their
ability to take instructions from younger supervisors.
It is also important to avoid making statements
during the interview process that could be alleged to create a contract
of employment. When describing the job avoid using terms like
"permanent", "career job opportunity" or "long term".
Interviewers should also avoid making excessive
assurances about job security. Avoid statements that employment will
continue as long as the employee does a good job. For example, suppose
that an applicant is told that "if you do a good job, there�s no reason
why you can�t work here for the rest of your career." The applicant
accepts the job and six months later is laid off due to personnel
cutbacks. This could lead to a breach of contract claim where the
employee asserts that he or she can�t be terminated unless it�s proven
that he or she didn�t do a "good job". Courts have on occasion held that
such promises made during interviews created contracts of employment.
Most companies have at least two people responsible
for interviewing and hiring applicants. It�s critical to have procedures
to ensure consistency. Develop interviewing forms containing objective
criteria to serve as checklists. They ensure consistency between
interviewers, as well as create documentation to support the decision if
a discrimination charge is later filed by an unsuccessful applicant.
Learn to assess job candidates on their merits. When
developing evaluation criteria, breakdown broad, subjective impressions
to more objective factors.
Obviously, you must prepare for the interview by
reviewing the application, resume, test results, and other materials
submitted by the candidate. Try and put the candidate at ease and ask
questions that can�t be answered with a "yes" or "no" response. These
open ended questions allow applicants to tell all about their skills,
knowledge and abilities. Some examples are: "Why are you leaving your
current employer?" "Do you prefer routine, consistent work or
faced-paced tasks that change daily?" "And why?"
Here are three potential dangers when interviewing.
- Asking improper questions
- Making discriminatory statements
- Making binding contract statements
The following are examples of questions that should
be avoided in interviews because they may be alleged to show illegal
- Are you a U.S. citizen? (adversely impacts national origin)
- Do you have a visual, speech, or hearing disability?
- Are you planning to have a family? When?
- Have you ever filed a workers� compensation claim?
- How many days of work did you miss last year due to illness?
- What off-the-job activities do you participate in?
- Would you have a problem working with a female partner?
- Where did you grow up?
- Do you have children? How old are they?
- What year did you graduate from high school? (reveals age)
As you can see, these rather simple and seemingly
non-threatening questions can easily violate one of the aforementioned
dangers when conducting interviews.
Companies that use "best practices" in interviewing
and that are extremely effective in consistently hiring top performers,
use customized or standard behavioral-based interview guides to remain
consistent in their line of questioning. These companies not only train
their recruiters, but they train their executives, department managers,
and hiring managers on legal and effective interview questions and
techniques to utilize during the interview.
These same "risk wise" companies will conduct a job
analysis audit for every position within their companies to establish
the types of behavioral and situational questions necessary for their
interviewing process. A job analysis audit is a process whereby a
company compiles objective data of what is required to be successful in
a given position. This process is conducted via interviews, surveys, and
testing (both hard skills and soft skills testing). This process allows
the company to objectively identify the competencies, behaviors,
thinking and decision making styles, as well as the technical skills
that are common among their top performers and required for the position
in question. This process establishes a hiring "benchmark" or
interviewing "guide" to follow. The resulting list of critical
competencies is what interviewers will use to evaluate candidates. This
benchmark, custom to each position, leads the company to define the core
line of behavioral interview questions that will uncover these critical
competencies, behaviors, and thinking styles, as they directly relate to
the job requirements.
Some of the most effective pre-employment behavioral
assessments in the market will provide the necessary behavioral
interview questions to pose to candidates. This is due to the
assessment's objective evaluation of each candidate�s competencies.
Here are a few examples of legally-defensible
behavioral interview questions that will assist in uncovering core
competencies in an interview.
What has been a particularly demanding goal for
you to achieve? (This question taps into the candidate�s achievement
orientation and requires them to explain the obstacle and their
thought process and actions to overcoming the obstacle)
Can you think of a situation in which an
innovative course of action was needed? What did you do in this
situation? (This allows you to uncover whether the candidate can
develop innovative solutions to work-related problems, and identify
potential opportunities and ways to capitalize on them)
What are the typical customer interactions you
have in your present position? Can you think of a recent example of
one of these? (This question focuses on the candidate�s customer
Have you ever been in a situation where you have
had to take on new tasks or roles? Describe this situation and what
you did? (This question allows you to probe into the candidate�s
degree of flexibility)
In your present position, what standards have you
set for doing a good job? How did you determine them? (This question
allows you to uncover if the candidate has high work standards)
Conducting a job analysis audit to objectively
identify the core competencies required for a given job, and then
customizing a list of behavioral-based interview questions like the ones
mentioned above to identify those competencies, can significantly reduce
your exposure to employment practices claims and increase your potential
for hiring top performers.
By instituting guidelines such as these and making
sure that your organization's managers follow them you will have gone
far in reducing your risk of a lawsuit from an employee or job