Don’t Ask, Don’t Pay: Tips for Navigating the Employment Interview

By Linda Burwell
Partner, Nemeth Burwell

The goal of every employment interview is to obtain valuable information about the candidate in an effort to hire the best person for the job. To obtain this information it is natural for an employer to put the candidate at ease by engaging in conversation that builds a friendly rapport. But did you know that what may seem like nothing more than friendly conversation can actually turn out to be a legal minefield?

State and federal statutes prohibit employers from discriminating against employees and applicants based on what are known as “protected categories.” These “protected categories” include but are not limited to race, color, gender/pregnancy, religion, national origin, age, disability, marital status and now, even genetic information. Employers that are not careful about how they ask questions during an interview may find themselves the subject of a lawsuit alleging discrimination based on one or more of these categories whether they hired the person or not and even if the reason for asking the question was entirely innocent. Individuals who prevail in such lawsuits often recover large sums of money. Even when the employer prevails, it is rarely able to recover its attorney fees.

Employers that want to shield themselves from costly allegations of discrimination would be wise to keep this guiding principle in mind when conducting employment interviews: questions asked of a job applicant should always relate to his or her ability to do the job. Employers should bear in mind that words matter and questions should be framed in a way that does not offend the applicant or raise a suspicion that illegal discrimination is at play.  Below are potential pitfalls of asking questions related to three of the many protected categories: a candidate’s national origin, race and religion.

National Origin/Race
It is illegal to discriminate against applicants based on their race or national origin and such considerations are irrelevant to the person’s ability to do the job. Most managers are aware that asking about a candidate’s race is inappropriate. But so is asking what country the person is from, whether they were born in the United States or whether English is their first language. This is true even if the person has a charming or unidentifiable accent that raises your curiosity prompting you to ask about it. However, when fluency in English and/or other languages is related to the responsibilities of the job it may be permissible to ask an applicant what languages they read, speak or write fluently. It is also permissible to ask whether an applicant is authorized to work in the United States, although this is best left to the post-hiring I-9 verification process.

Religion
Religion is a highly personal subject and inquiries about a candidate’s religious beliefs have no place in an employment interview. Asking “what religion are you?” “what religious holidays do you observe” or whether the candidate attends church might be interpreted as discriminating against certain religious groups or expressing a preference for a particular group. Additionally, questions about whether a candidate’s religion prohibits them from working a particular day of the week are prohibited. In certain situations, an employer may have a legal obligation to make reasonable efforts to accommodate a religious belief provided it does not impose an undue hardship on the organization. However, it is permissible to ask an applicant what days they are available to work or whether they are able to work a required schedule.

Questions about what clubs or social organizations the candidate belongs to may also be inappropriate because they can reveal religious affiliations that the person is not required to share. Instead, put the focus back on work-relatedness by asking whether the applicant belongs to any professional or trade associations relevant to the job.

With a little pre-planning, and care to avoid certain phrases, employers can easily dodge questions that might trigger suits for employment discrimination while still gathering the information needed to make the best employment decisions.  We will discuss the pitfalls of asking questions relating to other protected activities in future articles.

Nemeth Burwell, P.C., is a Detroit-based nationally recognized employment and defense law firm, working exclusively with employers to prevent, resolve and litigate employment matters.  For more information, contact Linda G. Burwell at (313) 567-5921 or lburwell@nemethburwell.com.