Fair hiring laws were enacted to give every candidate a fair shake in the interview and selection process. Yet more than 40 years after the first of these guidelines became law, job candidates today still are asked questions that are illegal, insulting, and irrelevant to job performance. The keys to eradicating this kind of behavior are ongoing education and consistent interviewing and selection practices.

Planning and Preparation are the First Steps

The planning process described in Part 1 of this series prepares you to ask candidates about only the essential skills and qualifications required, and helps prevent you from asking off-the-cuff questions that could be illegal.

As an HR professional, it is your job to train and guide hiring managers and other company interviewers in fair hiring practices. Many companies mandate a formal training program before any employee is permitted to interview candidates; it's also a good idea to provide a written overview for all interviewers and a brief refresher curriculum from time to time. And it is the responsibility of the HR department to stay up to date on new laws and legal interpretation of existing acts.

Job Relevance is the Key Factor

Your interview questions should be designed to determine a candidate's capability to perform the essential functions you have defined for the job. Just be sure to couch your inquiries in job-relevant language, and don't make assumptions about a candidate's ability or disability.

For example, let's say you are interviewing a wheelchair-bound candidate for an account manager position, and you have determined that an essential function of the job is to visit client sites. It's perfectly legal to ask how the candidate would perform this essential function:

"This job will require you to be out of the office meeting with clients several days per week. Can you tell me how you would get around?"

It is not OK to say to this same candidate, "How long have you been disabled?"

In other areas, where a disability is not visible, again you should confine your questions to essential job functions or workplace environment issues. For example, while you cannot ask a candidate if he or she has children or has adequate child care, you can ask about ability to perform the job:

"This job requires you to travel overnight about 2 days per week and to attend out-of-town conferences once per month. Does this travel schedule prevent a problem for you?"

Legal and Illegal Inquiries

Following are some of the key areas that are covered by fair hiring laws. You will see a trend in what is legal and what is illegal-essentially, you cannot ask questions that will reveal information that can lead to bias in hiring, but you can ask questions that relate to job performance.

  • Affiliations: Do not ask about clubs, social organizations, or union membership; do ask about relevant professional associations.
  • Age: Do not ask a candidate's age other than, "if hired," can a candidate produce proof that he or she is 18 years of age.
  • Alcohol or Drug Use: The only allowable question relating to current or past drug or alcohol use is, "Do you currently use illegal drugs?"
  • Criminal Record: Do not ask if a candidate has been arrested; you may ask if the candidate has ever been convicted of a crime.
  • Culture/Natural Origin: You may ask if the individual can, "upon hire," provide proof of legal right to work in the United States. You may ask about language fluency if it is relevant to job performance.
  • Disability: You may ask if candidates can perform essential job functions, with or without reasonable accommodation; and you may ask them to demonstrate how they would perform a job-related function. You may ask about prior attendance records. And you may require candidates to undergo a medical exam after an offer of employment has been made.
  • Marital/Family Status: Questions about marital status and family issues are discouraged except as they relate to job performance, as in the child care example above.
  • Personal: Avoid questions related to appearance, home ownership, and personal financial situation.
  • Race/Color: No race-related questions are legal.
  • Religion: If Saturday or Sunday is a required work day, you may ask candidates if they will have a problem working on those days.
  • Sex: You may ask if a candidate has ever worked under another name. Be sure not to make gender-related assumptions about job capabilities.

How to Deal with Information that is Volunteered

Despite your careful preparation and question selection, some candidates will volunteer information that you would prefer not to know. The best way to handle this situation is not to pursue it nor to make note of it. You can't erase the information from your memory, but you can eliminate it as a discussion point and selection factor.

Consistency Equals Fairness

Carefully planned questions and a structured interview process that is the same for all candidates will ensure equal treatment of all who apply. Keep the focus on what the job requires and how each candidate has performed in the past. Perhaps most importantly, make fair hiring part of your company's mission and value statement, championed from the top down and an integral part of the selection process.