When Hiring, Just Because You Can Ask It Doesn’t Mean You Should

By Eric B. Meyer

I received a comment to yesterday’s post about 29 questions you should never ask a candidate in a job interview.

Laurie Ruettimann, who blogs at The Cynical Girl, questioned the real-world ramifications of making one of my 29 no-no’s:

Hey, Eric. Great list. I once had an employment lawyer tell me that you can ask any question — you just can’t make an employment decision based on the answers. Can you blog about that distinction? Asking versus action? I would love to get your thoughts on that!”

Ask and ye shall receive. Or is it, ye shall receive, yo? (If you don’t read Laurie’s blog, that last sentence flew right over your head).

Actions speak louder than words.

Dumb questions can spell doom

I racked my brain, thinking of a question that an interviewer could ask which, even if the company never acted on the candidate’s response, would spell doom for the company. Here’s what I came up with:

Would you like to have sex with me? Otherwise, you won’t get this job.”

There are many variants on that question, I’m sure that you smart folks can think of one or two of ’em.

If the candidate is denied employment for refusing to sleep with the interviewer, then the company will have problems. Otherwise, a company won’t be automatically liable to a candidate if it asks questions like:

“With whom do you live?”
“If you get pregnant, will you continue to work after childbirth?”
“What holidays do you celebrate?”

It’s when companies ask these dumb questions and act on the information that they receive that they get into hot water. Indeed, it is illegal to base employment decisions on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual’s genetic information.

But, how does your company want to be perceived by job applicants?

Just because you can get away with it, doesn’t mean it’s worth the risk.

Let’s say you ask a job candidate, “What kind of name is that?” This is one of the more innocent of the 29 questions to avoid. I’m sure it comes up a lot, without any sort of animus or devious motivation on the part of the interviewer. Maybe it’s just being used to break the ice. Consequently, many candidates may be none-the-wiser as to how the answer to this question could affect a hiring decision. And there’s really no-harm, no-foul insofar as the answer does not actually motivate a hiring decision.

One the other hand, questions such as: “Have you ever sued a prior employer for sexual harassment?” and “Do you have any disabilities?” are far less innocuous. (The latter cannot be asked before extending a job offer; some slack is cut post-offer). Those aren’t mere conversation starters and have no bearing on determining who is best suited for a particular job opening. Rather, those are probing questions designed to prevent potential headaches.

If the candidate responds, “Yes” to either question, and the company decides to hire someone else, the candidate will likely assume that the answer dictated the outcome. That could lead to a number of claims. Based on the above examples: retaliation and disability discrimination, respectively.

Now, the company may have a perfectly legitimate business reason for bypassing the candidate who sued a prior employer or divulges a disability — maybe that candidate doesn’t have the right experience or skill set. Whatever reasons the company has for not hiring that candidate — as long as they are not based on some protected class — the employer should ultimately escape liability if the applicant sues. By law, the ultimate burden of persuasion rests with the applicant to show that the employer engaged in unlawful discrimination; i.e., the candidate’s answer motivated the hiring decision.

How a company is perceived by employees

But how much is it worth to the company to find out? There’s the expense of litigation, the business interruption, and, of course, the chance that a jury of the applicant’s peers may side with the applicant.

Now ask yourself how your company wants to be perceived by its own employees?

This is a big point that many overlook. Consider this fact pattern:

Sherman Supervisor hires Edith Employee to work under him at ABC Company. Upon commencing work, Edith reports directly to Sherman. Edith’s co-worker, Enzo, also reports to Sherman.

The following year, Sherman and Enzo resign. Steve takes over for Sherman and Steve is tasked with finding a replacement for Enzo. So, Steve conducts a series of interviews, many of which Edith observes or is told about by other observers. When Steve interviews men, he discusses sports. When he interviews female applicants, he asks about family, “How many children do you have? Do you plan to have more in the near future?”

Steve ultimately hires Eddie to fill Enzo’s position. Months later, Steve informs Edith that ABC has decided to downsize and is eliminating her position. Eddie keeps his position.

Even if both ABC and Steve honestly believe that Eddie is the more qualified employee, and even if Steve’s questions were posed with no ulterior motive, how much do you want to bet that Steve’s interview style makes it into Edith’s complaint to support a lawsuit for gender discrimination?

Ultimately, questions that serve no legitimate business purpose — especially those that could invite a lawsuit — should not be asked during interviews.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.