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Home > Agents, Blogroll, Development, Startups > The Legalities of Interviewing: What you can and cannot ask

The Legalities of Interviewing: What you can and cannot ask

August 9th, 2011

As a successful entrepreneur, the time arises when hiring additional staff becomes critical to continued growth and prosperity. Deciding on the skill sets, educational background, and previous employment history is the easy part, the difficult task for any employer is the interview. The legal aspects of what can and cannot be asked of a potential new hire often makes the interview process as stressful and uncomfortable for the recruiter as it does the recruit. However, there is no need for sweaty palms and hand wringing as all it takes is a small amount of due diligence, some prepared questions, and a few responses for volunteered personal information, should keep any entrepreneur out of any legal land mines during the interview process.

The U.S. Equal Employment Opportunity Commission (EEOC) is the federal law enforcement of the following employment acts: 1) Title VII of the Civil Rights Act of 1964; 2) the Pregnancy Discrimination Act; 3) the Equal Pay Act of 1963; 4) the Age Discrimination in Employment Act of 1967; 5) Title I of the Americans with Disabilities Act of 1990; 6) Sections 102 and 103 of the Civil Rights Act of 1991; 7) Sections 501 and 505 of the Rehabilitation Act of 1973; and 8) the Genetic Information Nondiscrimination Act of 2008 (EEOC). All of these statutes are applied to any business with more than 15 employees. Regardless of the size of a company, the best practice in hiring would be to incorporate all facets of these laws into every aspect of human resources, management, and employee relations.

Basically, there are several rules of thumb to follow in order to avoid asking any illegal interview questions:  1) cannot ask a person’s age (either by birth date, high school graduation year, birth year, etc.); 2) marital/ family status; 3) height, weight; 4) disabilities, recent illnesses or operations, last physical exam, family health; 5) obvious physical impairment questions; 6) nationality, native language; 7) arrest record; 8) military discharge information; 9) social affiliations; 10) race, color, religion; 11) use of lawful products like tobacco and alcohol; 12) lowest acceptable salary; 13) language proficiency; and 14) friends or relatives already employed by the company.

Example legal questions: 1) are you over 18 years old? 2) Can you travel or relocate if necessary? 3) Can you lift up to 60 lbs. and carry it 50 feet? 4) Will you be able to perform the job’s essential functions with or without reasonable accommodations? 5) Are you authorized to work in the United States? 6) Have you ever been convicted of a crime? 7) What branch of the military did you serve?

When going through the interview process, potential employers have a legal obligation to correctly handle the questions in a manner that is not offensive or discriminatory to the recruit. By no means is the above list complete or exhaustive and it is always prudent to review the current hiring and employment laws whenever beginning the recruiting process.

References

The U.S. Equal Employment Opportunities Commission. (n.d.). Laws Enforced by EEOC. Retrieved from http://www.eeoc.gov/laws/statutes/index.cfm.

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