Hiring? Avoid Asking These Types of Questions On Your Next Interview

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At some point in your career you're going to be interviewing candidates

 If you’re a business owner or an employee of a company you’ve likely had many interviews to find candidates for open positions. It’s important to know what questions you should and should not ask.  In this article we outline what topics to avoid asking during the interview process.

Federal law applicable in all states

Although the Civil Rights Act of 1964 (CRA), Age Discrimination in Employment Act of 1967 (ADEA), Pregnancy Discrimination Act (PDA), and the Immigration Reform and Control Act of 1986 (IRCA), do not expressly prohibit employers from asking specific questions, they do prohibit employers from discriminating against applicants and employees based on race, color, religion, sex, national origin, and citizenship. Although some questions may seem innocuous enough and may not be expressly prohibited from being asked of an applicant, at the very least, certain questions may provide a basis for someone who was not hired to claim it was due to discrimination. Some examples of these innocent sounding questions are:

  • What is your date of birth?
  • When did you graduate from high school?
  • How long have you been working?
  • Are you married or divorced?
  • Do you have kids? or do you want to have kids?
  • What do you do for childcare?
  • Are you or your family religious?
  • Will you be needing time off for religious holidays?

 

The Americans with Disability Act (ADA) prohibits employers from discriminating against applicants and employees based on disability. The ADA further prohibits employers from asking questions about disabilities before they hire an employee. However, employers can ask prospective employees whether they think they will be able to perform the job with or without reasonable accommodations, or if they have any conditions that would keep them from performing the job. The following are examples of questions employers cannot ask:

 

  • Do you take any medication?
  • What is your medical history?
  • Do you have any mental health conditions?
  • How is your health?
  • Have you ever received a disability check in the past?

 

The Genetic Information Nondiscrimination Act (GINA) prohibits employers from discriminating against applicants and employees based on their genetic information. GINA also general prohibits employers from requesting, requiring, or purchasing genetic information with respect to an employee or a family member of the employee.

New York

 

The New York Human Rights Law (NYHRL) prohibits questions on application forms or in interviews that express any limitation, specification, or discrimination as to:

  • Age
  • Race
  • Creed
  • Color
  • National origin
  • Immigration status (other than eligibility to work in the US)
  • Military status
  • Sex (including gender identity and transgender)
  • Sexual orientation
  • Disability
  • Predisposing genetic characteristics
  • Marital status
  • Caregiver status
  • Domestic violence victim status

The NYHRL also prohibits questions about certain arrests and criminal convictions, including:

  • An arrest that is not pending and did not result in a conviction
  • A youthful offender conviction
  • A conviction record that has been sealed by the court

New York Labor Law prohibits employers from asking applicant about their wage and benefits history.  Rather, employers may ask an applicant for their salary expectations for the position instead of asking what the applicant earned in the past.

New Jersey

The New Jersey Law Against Discrimination (LAD) prohibits employment practices that discriminate based on

 

  • Race
  • Creed
  • Color
  • National origin
  • Ancestry
  • Age
  • Marital status
  • Civil union status
  • Domestic partnership status
  • Affectional or sexual orientation
  • Genetic information
  • Pregnancy
  • Sex (including sexual harassment)
  • Gender identity or expression
  • Disability (including acquired immunodeficiency syndrome (AIDS) and human immunodeficiency virus (HIV) infection)
  • Atypical hereditary cellular or blood trait
  • Liability for military service
  • Nationality
  • Refusal to submit to a genetic test or make test result available to an employer

 

Although the LAD does not expressly address preemployment inquiries, it does prohibit employers from discriminating in any job-related action including

  • Recruitment
  • Interviewing
  • Hiring
  • Promotions
  • Discharge
  • Compensation
  • Terms, conditions, and privileges of employment based on any protected characteristic

 

Did You Know?

The New Jersey Opportunity to Compete Act (NJOCA) generally prohibits employers from requiring that applicants for employment complete any employment application during the initial application process that asks about an applicant’s criminal record. It also prohibits employers from making any oral or written inquiry during the initial employment application process regarding an applicant’s criminal record. The “initial employment application process” ends when the employer has conducted a first interview of the job applicant, after which inquiries regarding an applicant’s criminal record may be made by the prospective employer. The NJOCA also prohibits employers from producing solicitations for a position that state the employer will not consider anyone who has a criminal record, with certain exceptions.

New Jersey law also prohibits employers from asking applicant about their wage and benefits history.

New Jersey provides a great resource to help employers prepare and conduct lawful applications and interviews that can be found in this link: https://www.state.nj.us/csc/about/divisions/eeo/pdf/EEOAA_interview_guide.pdf

 

As you can see there are many topics to avoid asking a prospective employee.  Avoid these topics on your next interview and save yourself from potential discrimination claims.

Disclaimer:

Information contained in this post is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the with Michael H. Ansell, Esq., or other competent legal counsel.

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Picture of Michael Ansell, Esq.

Michael Ansell, Esq.

Michael Ansell is the founder and managing member of NextGen Counsel LLC. Throughout his years in practice, Michael focused on a variety of areas that impact small businesses, including contracts, employment, commercial leasing, corporate governance, construction, and general litigation.

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