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Don't Ask Job Applicants the Wrong Questions

By Joel Handelsman | June 29, 2012

Interviews and job application forms are two of the more common methods of gaining the information you need to hire the right employee. Both are useful screening tools, but you need to be careful about what you ask during an interview or on an application form. If you discuss an "off-limits topic," you run the risk of being sued by job applicants who feel they were denied employment for an improper reason.

It's easier to avoid mistakes on a job application form than during an interview. You can create or buy a job application that doesn't request any inappropriate information. In most interviews, however, some part of the time is spent on small talk. During this type of informal conversation, there are many opportunities to touch on the wrong subject. Here are a few danger areas to avoid. In all cases, if a candidate volunteers information in one of these areas, don't comment and, whatever you do, DON'T write it down.

Marital status. Don't ask applicants about their marital status.

Maiden name. Asking this can raise questions of discrimination based on marital status, gender, or even national origin.

Age. Ask for age only if it's necessary to comply with minimum age and child labor requirements under state laws. A permissible question is, "Are you at least 18?"

Children. It's permissible, but not recommended, to ask "Have you made arrangements to care for any children?" since that can be justified on grounds of availability and reliability. If you feel compelled to pursue the child care issue, which can increase your exposure to charges of discrimination, do so in the interview, not on the application form, to minimize the risk. Question men as well as women and treat the answers the same.

Gender, race. There are very few bona fide occupational qualifications based on gender, and so far, there are none recognized based on race. Ask only if you need to in order to comply with affirmative action obligations.

Birthplace. Don't ask because of the possibility of national origin or immigration issues.

Personal references -- friends, business contacts, etc. Ask for names and current addresses, but ask only if you intend to follow up. Applicants frequently tell references to expect your call.

Residence. "Do you rent? own? board?" Once a common question, it supposedly was a measure of stability. But it may evidence discrimination against minorities and others who tend to rent rather than own, and it's likely to be regarded as none of your business by many applicants.

Relationship of person to notify in an emergency. Don't even ask the question at all until you hire an applicant.

Criminal records. You may ask about conviction records on a job application, in order to protect yourself from negligent hiring claims, but don't ask about arrest records. If you decide to ask about conviction records, place a statement nearby indicating that a conviction alone won't prevent hiring.

Type of discharge from military service. Some states make it unlawful to discriminate on this basis.

Disability, health. Don't ask medical questions. Defer medical or physical exams, if necessary, until after you make a conditional offer of employment.

Workers' compensation history. The Americans with Disabilities Act (for employers with at least 15 employees) prohibits questioning about an applicant's workers' compensation history. Gather the information you need to comply with your obligations only after an offer of employment has been made.

Citizenship. Discrimination based on citizenship is unlawful under the Immigration Reform and Control Act of 1986.

Dates of school attendance. Asking for dates attended might be viewed as a means of asking an applicant's age. Don't ask unless you can show a nondiscriminatory, legitimate business reason, such as to facilitate reference checks.

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