Hiring

Hiring Managers … avoid these questions!

FROM THE ONLINE SITE, MENTAL FLOSS, 20 MAY 2015

 

Hiring managers have their companies’ best interests at heart. Of course they want to know if you’ll be a good fit, but they also want to know if you’re likely to leave to start a family or retire in the near future. But asking anything intended to get information about a person’s status in a protected class—age, race, religion, pregnancy, etc.—is technically illegal. Still, Peter K. Studner, author of Super Job Search IV: The Complete Manual for Job Seekers & Career Changers, says that often both interviewers and interviewees don’t realize that a certain line of inquiry has veered into murky territory. To help defend job seekers against revealing information that could be used against them, here are eight questions that you should always avoid answering.

1. ARE YOU MARRIED?

Anything that fishes for information about a candidate’s family plans (marriage, engagement, and child planning) is technically illegal because it falls under pregnancy discrimination. It can often seem like a hiring manager is just making pleasant conversation and trying to get to know you better, but job applicants are not obligated to disclose any personal information. This could also be a subtle way to question someone about their sexual orientation—another protected class.

2. HOW OLD ARE YOU?

Lots of applications will stipulate that employees have to be over 18, and that’s fine—ensuring their workers are not minors is within a company’s rights. But this question becomes problematic when interviewers ask more mature candidates that question, because it’s illegal to discriminate against anyone over 40 on the basis of age. If anyone asks, don’t feel bad about declining to respond. Recognize that whoever is interviewing you probably already has some sense of your age just from looking at your resume, and use the opportunity to emphasize all those years of experience.

3. WHEN DID YOU GRADUATE?

We all know how math works—this is just a not-so-sly way to calculate someone’s age. (Feel free to nix the graduation year from your resume, too.) “If the interviewer presses for a reply, you might give him the date and then ask how that applies to your candidacy,” Studner says. “And in the final analysis, would you really want to work for a company where the management discriminates against age? It might be better to move on.”

4. HOW’S YOUR HEALTH?

If it’s a physically demanding job, employers have a right to ask about specific physical abilities. For example: “This job requires lifting packages up to 30 pounds, or standing on your feet for six hours a day, or talking on the phone at least 80 percent of the time. Is this something you can do on a continuous basis?” But anything that isn’t directly related to tasks you’ll be performing on the job is personal information that you don’t have to—and shouldn’t—reveal.

5. WHAT RELIGION ARE YOU? DO YOU OBSERVE ANY RELIGIOUS HOLIDAYS?

It’s illegal to discuss your religion in an interview, even if it will affect your need to take time off. It can be awkward to back out of this question if an employer presses the issue, so Studner suggests a polite but firm, “I prefer not to discuss my religion, but I can assure you that it will not interfere with my doing this job.”

6. HAVE YOU EVER BEEN ARRESTED?

It’s not illegal to ask if you’ve ever been convicted of a crime, and many employers do, either on the application or in the interview. But what they can’t ask about is your arrest record. That said, it is not illegal for a concerned hiring manager to do some independent research to see if there are any records of arrests available online. If you know they’ll be looking into your background, this constitutes a rare instance where an interviewee should volunteer incriminating information.

“In these kinds of cases where a future employer might uncover prior arrests, it is important to discuss the incident up front and point out that it was a thing of the past, never to be repeated,” Studner says. “The more serious the offense, the more convincing you have to be.”

7. WHAT COUNTRY ARE YOU FROM?

As long as you’re authorized to work in the country where the job is located—a question they are allowed to ask—employers can’t dig into where you’re from because nationality discrimination is illegal. Similarly, they can’t ask if English is your first language.

8. DO YOU LIKE TO DRINK SOCIALLY?

It’s not entirely clear why this would come up in an interview situation, but if it does, it’s actually illegal in order to protect people who might answer “No.” Under the Americans with Disabilities Act of 1990, recovering alcoholics don’t have to reveal any information that might hint at their status. It’s also illegal to question job applicants about when they last used illegal drugs, although asking if you’re currently using illegal drugs is permissible

EMPLOYER ALERT – NO DIPLOMA, NO JOB?

A hard and fast rule that all job applicants must have a high school diploma can get you in trouble.  The Equal Employment Opportunity Commission has published new rules about how the Americans with Disabilities Act (ADA) applies to people without a high school diploma. Immediately rejecting someone for lacking a high school diploma could be considered discrimination. At first, this sounds like a terrifying and ridiculous rule, but it’s much more nuanced than it first seems. As long as an employer is aware of the rule and how it works, there shouldn’t be any issue (you don’t have to hire someone who isn’t qualified).

The rule has to do with people who did not complete high school because of some disability that prevented them from doing so. If you require a high school diploma to be hired for a job, and an applicant tells you that they were unable to get a high school diploma because of a disability, then all this rule means is you should allow the applicant to show some other evidence proving that they are qualified.

It’s still your decision who to hire, and you can choose another candidate if they are more qualified or simply a better fit for your organization. What’s important though is to give everyone a chance to prove their qualifications, instead of simply rejecting an applicant out of hand solely because they don’t have a diploma.

In practice, this won’t actually affect smart businesses much at all (since just allowing someone a chance to prove qualifications in other ways is a pretty minor accommodation), but it could hurt businesses who are unaware of the new rule. Luckily, you now know how this works, and so you know how to avoid getting in trouble with the EEOC.

Read more about this new rule here:

http://www.eeoc.gov/eeoc/newsroom/wysk/high_school_ada.cfm

IN THE NEWS – RESUME, JOB APPLICATION . . . . AND FACEBOOK PASSWORD?

According to recent stories in the media an increasing number of employers are asking job applicants to either provide their login information for Facebook, LinkedIn and other social networking sites, or log onto their private account during the actual job interview. Others ask the applicant to accept a “friend” request from an HR representative or a recruiter.

The following are just a few of the news articles published on this topic recently:

http://www.cnbc.com/id/46792761/page/2/

http://www.wtsp.com/news/article/246040/250/Would-you-share-your-Facebook-password-during-a-job-interview

http://www.valleynewslive.com/story/17204725/facebook-password-needed-for-a-job-interview

http://www.cbsnews.com/8301-500395_162-57400973/should-job-seekers-open-up-their-facebook-page/

Although several states are considering introducing legislation that would limit a public employer’s access to private information on social networking sites, currently there are no laws preventing an employer (either public or private) from requesting access to an applicant’s social media site – or preventing the employer from refusing to hire an applicant who says no.

What type of information are employers looking for? Many are using a social network site as a replacement for character references and a background check. An individual’s Facebook page can reveal information about alcohol consumption, use of illegal drugs, inappropriate photos, and rants about a former employer, just to name a few potential disqualifiers. An employer has every right to make a no-hire decision based on the foregoing.

However, an individual’s Facebook page (or other social network site) may also reveal information the employer legally cannot factor into the hiring decision – information, for example, regarding an individual’s sexual orientation, age, race, marital status, national origin, disability, and religious beliefs. An employer who has access to this information and then decides not to hire the candidate risks being accused of making the decision for a discriminatory reason.

The best practice is for employers to avoid the temptation to request access to an applicant’s social networking sites. Otherwise, you may get more information than you intended.

IN THE NEWS – THE BUCK STOPS HERE ON HIRING

One way to avoid claims of discrimination in hiring is to use an independent contractor or recruiter to screen and interview potential employees, right? Wrong! In a decision rendered September 10, 2009, a federal court of appeals in New York ruled that an apartment complex could be held liable for violations of the Age Discrimination in Employment Act (“the ADEA”) when an independent contractor told an applicant he was “too old” for the job showing apartments. Because the apartment complex delegated the hiring process to a third party, the apartment complex could be held liable for its “agent’s” conduct, even if it had no knowledge that the discriminatory hiring practices were occurring.

The court pointed out that this ruling only applies if the outside firm or agent is hiring applicants to work directly for the employer. You will not be held liable if an independent contractor hired to perform services for your company discriminates against its own employees.

If you do decide to use an outside firm or agent to assist you in screening applicants for a position in your company, however, you should make certain they are following EEO guidelines

TIP OF THE DAY – SAFETY IN ADVERTISING

Targeting your message may make sense in advertising, but it can signal trouble if the ad you’re placing is for an employment opportunity. Be careful not to use language that could be interpreted as an age or gender preference.

Describing the ideal candidate as a “recent graduate” or the position as “entry level” could signal a preference for a young candidate, and result in EEOC filings by older job applicants who believe they were rejected for discriminatory reasons.

EMPLOYER ALERT – USE OF SOCIAL NETWORKING SITES CAN BACKFIRE

Many employers are looking at social networking sites like MySpace and Facebook for additional information in screening job applicants. The conventional wisdom has been that searching for and reviewing these sites can provide useful information about an applicant’s judgment and character. Have they been blogging about frequently calling off work at their last job after a long night of partying? Do their photos and comments indicate a lifestyle of excessive alcohol consumption or use of illegal drugs? Have they “trashed” their previous employer online? Are they posting the sort of photographs that you would find embarrassing if one of your customers “Googled” their name as a representative of your company?

All of the foregoing is information that certainly could be relevant to your hiring decision. But when does information obtained online become “too much information,” placing your company at risk?

This issue is discussed at length by Lester Rosen, head of a California-based national background screening company, in a two-part series published in Recruiting Trends®, an online newsletter for HR professionals. Mr. Rosen cautions that privacy issues may be involved if you or your background screener access these sites by setting up a cover identity, and that in some circumstances Fair Credit Reporting Act notifications may be required by law for including review of these sites in a background investigation.

The most troubling issue noted in the article, however, is that reviewing an applicant’s social networking site may give you information about their disability, age, race, national origin, religion, sexual preference or other characteristics which of course can not be considered in making employment decisions. If you decide not to hire the individual, they may assume that you have discriminated against them based on that information. Mr. Rosen’s article appears at http://www.recruitingtrends.com/online/thoughtleadership/969-1.html

TIP OF THE DAY – 10 FRIENDLY QUESTIONS YOU SHOULDN’T ASK

A job interview is an opportunity to get to know the candidate on a personal level, and assess whether he or she will be a good fit in your organization. Often, however, friendly questions asked with the best of intentions stray into a protected area, causing the candidate to reveal information about their age, health, marital status, sexual orientation,* national origin or religion that, by law, cannot be considered in the hiring process. When that candidate is not offered the job, they may well make assumptions about your decision-making process that are completely incorrect, and you could be in the position of defending yourself and your company from allegations that the failure to hire was discriminatory.

Friendly questions that seem harmless on their face but can get you into trouble include the following:

  1. River City, huh? My cousin went to high school there. What year did you graduate?

  2. So, you’re new to the area. Do you need any help finding out about schools or churches?

  3. I see from your resume that you’ve got over 30 years experience. How long are you planning to work before you retire?

  4. You got married recently – congratulations! Are you planning to have kids?

  5. That’s a very unusual name. What nationality is that?

  6. Some of us are on a company softball team –I bet you’d be a great addition. Could we count on you?

  7. Being here on time is important to us. As a single parent, do you think your childcare responsibilities will interfere with your attendance?

  8. How do you feel about reporting to a (younger/female) supervisor?

  9. I couldn’t help noticing your accent. Are you from the Middle East? What do you think about what’s going on over there?

  10. Would you be relocating here yourself, or do you have a spouse or significant other who’d be coming with you?

None of these questions are necessarily asked with bad intentions. Each of them, however, has the potential for either eliciting information about membership in a protected class that would not otherwise be apparent pre-hiring, or creating the impression that certain protected characteristics are preferred over others in an employee.

By training your supervisory employees on proper interviewing, you can avoid unnecessary exposure to claims that your hiring practices are discriminatory.

*Although sexual orientation is not a protected class under federal law or Florida state law, numerous counties and municipalities have adopted ordinances which prohibit employment discrimination based on sexual orientation.

IN THE NEWS – RESTAURANT CHAIN PAYS $1MILLION SETTLEMENT TO MALE SERVERS, BARTENDERS AND JOB APPLICANTS

Hiring preferences based on gender can result in significant liability for your company, as illustrated by a recent federal court case filed against Razzoo’s Cajun Café, a Texas-based restaurant chain. As part of its image, Razzoo’s told restaurant managers to maintain an 80/20 ratio of women to men bartenders. This resulted in a low number of male servers who were promoted to work behind the bar, and low hire rates for male job applicants. Even those men who were promoted to bartender were excluded from working at the high-paying “girls only” bartending events. The company’s website depicts servers and bartenders predominantly as young, attractive women, with only an occasional male employee shown.

The EEOC filed suit under Title VII on behalf of the male servers, bartenders and job applicants, and settled the case last week for $1 million, primarily to be distributed among the affected applicants and employees. A portion of the settlement proceeds is also earmarked to establish company-wide HR policies and training to prevent future gender-based discrimination.

The lesson to be learned from this case is that efforts to create a marketing image do not excuse excluding employees based on gender. The same principle applies to age, race, disability, religion and national origin. Caution should also be used not to bring preconceived notions about the stereotypical applicant best suited for the job into the interviewing and hiring process.