Getting Personal May Cost You

The employment relationship is fraught with potential litigation pitfalls for employers – even before it actually begins. There have been many lawsuits that were based on inquiries made during job interviews. These inquiries are often innocent questions intended to start a conversation or put the interviewee at ease, but they can easily backfire and lead you straight to the courtroom.

So, what can an employer ask during an interview? And what should not be asked? The basic rule is to focus on the applicant's qualifications and potential for performing the job well, and not the applicant's personal characteristics. Let's look at some examples:

  • Age. You can ask applicants if they are at least 18 years old, as there are restrictions on employing minors. But do not ask older applicants questions like, "How much longer do you think you will work before retiring?" or "Why are you switching jobs at your age?"

  • Children. You can ask applicants whether they are available to work on weekends or evenings, but do not ask them what their childcare arrangements are or whether their spouses will mind if they work certain shifts. Employers should care only about whether applicants are available to work as requested, not how they will arrange their personal lives to accommodate their work responsibilities.

  • Other family members. It is acceptable to ask applicants whether they have any family members who are past or current employees of the company or a competitor, and what their positions are or were. Otherwise, questions about the employment of applicants' family members should be avoided.

  • Disability/health. Do not ask applicants about any disabilities or health conditions that may need accommodation until after an offer of employment has been made. Rather, describe to applicants the essential functions of the job and ask whether they can perform the essential functions with or without a reasonable accommodation.

  • National origin/citizenship. You can ask applicants whether they are able to provide proof of a legal right to work in the United States. But it is not acceptable to require that they present proof of right to work or to ask whether they are United States citizens, before you have made them a job offer.

  • Arrests/Convictions: The Equal Employment Opportunity Commission ("EEOC") frowns upon employers asking about arrest records. The EEOC contends that minorities are arrested more often simply because they are minorities, and that asking about arrests may therefore have a disparate impact on minority applicants. Asking about convictions is generally considered acceptable, but the inquiry should be limited in time (e.g., convictions in the past 10 years) and the employer should make clear that not every conviction will preclude the applicant from employment.

  • Political activities. It is not appropriate to ask applicants which political party they belong to, who they voted for, or whether they are politically active.

  • Claims against prior employers. Do not ask applicants if they have ever sued a previous employer or filed a claim with the EEOC. Such activities are protected, and you could get sued for retaliation if you decided not to hire an applicant because of such a lawsuit or claim. For the same reason, do not ask applicants whether they have ever filed a workers' compensation claim against any employer.

To avoid making mistakes during an interview, draft a series of questions in advance to ask each applicant and focus those questions on the job and general job performance. Can you perform the job as outlined? What are your pay requirements and pay history at previous jobs? When are you available to start work? What is your educational background? Please explain the gap in your employment. Why did you leave your previous position? Why are you leaving your current position? May we contact your current employer, and if not, why not? Have you ever been involuntarily terminated, and if so, why?

In the course of interviews, applicants may voluntarily offer information such as their age or childcare arrangements. But the employer must be careful not to solicit such information, or to use such information in making hiring decisions.

Remember: You are seeking an employee, not a social acquaintance. Keep the focus on applicants' overall qualifications and whether they can perform the job being offered, and you will be much more likely to avoid claims.