While job interviews 20 years ago routinely involved questions about an applicant's health, marital status and children, those subjects join a long list of taboo topics best avoided by employers wanting to avoid even the appearance of discrimination. In general, employers can use this simple rule of thumb: Would I ask this question of all job applicants? If the answer is no, the question should be avoided.
Say you ask if a person has children, hire them, and later fire them for unrelated reasons. That person could assume it was because his or her family got in the way of work and then sue you for discrimination. Bottom line: Rein in your natural curiosity when talking with potential employees and keep questions work-related. Here are some questions to avoid, and alternate ways to get the same information:
Question: What is your maiden name?
Why Avoid: This question falls under the general rule of not asking questions you wouldn't ask of all applicants and could lead to an inquiry about marital status.
Ask Instead: Is there another name you've used in your education or work we need to know to do a background check?
Question: Have you ever been in trouble with the law?
Why Avoid: This could be seen as discriminatory to certain ethnic or racial groups and a potential violation of federal/state laws.
Ask Instead: Have you been arrested or convicted of a crime that has not been annulled by a court? If yes, describe the nature and date of the case.
Question: When did you graduate?
Why Avoid: This leads employers to a person's age and asking about age violates the Age Discrimination in Employment Act, which protects employees over 40, and NH law, which has no age threshold.
Ask Instead: Are you at least 18 years old (or whatever minimum age is required)?
Question: Are you in good health?
Why Avoid: When asking any question relating to health, employers may unwittingly violate the Americans with Disabilities Act (as amended) and applicable state laws.
Ask Instead: This is the job description. Can you perform all of the essential functions with or without reasonable accommodations?
Questions: Are you Pregnant? Do you have Children?
Why Avoid: It is illegal to discriminate on the basis of gender and pregnancy.
Ask Instead: This is a full time job (outline the required days and hours). Can you meet those requirements?
Question: What is that accent? What is your native language?
Why Avoid: The Federal and state laws prohibit discrimination on the basis of national origin and race.
Ask Instead: This job requires fluent speaking and writing in English. Can you meet those requirements?
Question: What clubs or social organizations do you belong to?
Why Avoid: It is illegal to discriminate on the basis of religion, and this question could likely lead to whether an applicant participates in a church or temple.
Ask Instead: Tell me about any professional organizations that would enhance your application. If you choose to answer, please exclude those whose name would indicate sex, race, religion or creed, color, national origin, disability or ancestry.
If an application offers personal information, you can follow up with a job-related question. So while an employer can't ask about service in the military, if an applicant volunteers they are in the NH National Guard, an employer can describe the job requirements and ask if the applicant can meet them. There are also topics employers should avoid unless they are job related. So unless the position is for a bank teller, security role or other job dealing with money, asking for credit scores can be seen as inappropriate. That said, there are some questions employers must ask; for instance, some jobs require American citizenship or a valid driver's license.
James P. Reidy is an attorney with Sheehan Phinney Bass + Green in Manchester. He focuses on employment and labor law and can be reached at 603-627-8217 or visit www.sheehan.com.
Current Issue - May 2024