Every recruiter, hiring manager, executive, and department manager should realize that asking the wrong interview questions or making improper inquiries can lead to discrimination or wrongful-discharge lawsuits, hiring the wrong employees, or both. Lawsuits can be won or lost based on statements made during the interview process.
Thus, it is important to incorporate risk management into your interviewing process to maximize your ability to assess candidates and minimize your firm's exposure to employment practices liability. You can manage the risk in your interviews by performing a job analysis audit, developing open-ended behavioral interview questions, and avoiding certain types of questions.
Interview Risk Management
A job analysis audit is a process where a company compiles objective data of what is required to be successful in a given position. This process is conducted via interviews, surveys, and testing (both hard skills and soft skills testing).
This process allows the company to objectively identify the competencies, behaviors, thinking and decision-making styles, as well as the technical skills that are common among their top performers and required for the position in question. This process establishes a hiring benchmark or interviewing guide for interviewers to follow.
The resulting list of critical competencies is what interviewers will use to evaluate candidates. This benchmark, custom to each position, leads the company to define the core line of behavioral interview questions that will uncover these critical competencies, behaviors, and thinking styles, as they directly relate to the job requirements.
A behavioral interview question is a question related to the job and designed to provoke insightful responses from candidates. Insightful responses in an interview are answers that allow interviewers to decide whether a candidate possesses the skills and analytical ability for the job.
A few examples of legally-defensible behavioral interview questions that will assist in uncovering core competencies in an interview are:
- What has been a particularly demanding work-related goal for you to achieve?
- Can you think of a situation in which an innovative course of action was needed? What did you do in this situation?
- What are the typical customer interactions you have in your present position?
- Have you ever been in a situation where you have had to take on new tasks or roles? Describe this situation and what you did?
- In your present position, what standards have you set for doing a good job? How did you determine them?
Questions to Avoid
To minimize the risk of discrimination lawsuits, it’s important for interviewers to be familiar with topics that aren’t permissible as interview questions, for the reason that they could lead a candidate to believe they weren't chosen because of a personal aspect. For example, you shouldn’t ask a female applicant detailed questions about her husband, children, and family plans.
Such questions can be used as proof of sex discrimination if a male applicant is selected for the position, or if the female is hired and later terminated. Older applicants shouldn’t be asked about their ability to take instructions from younger supervisors.
It is also important to avoid making statements during the interview process that could be alleged to create a contract of employment. When describing the job avoid using terms like "permanent," "career job opportunity," or "long-term."
Interviewers should also avoid making excessive assurances about job security. Avoid statements that employment will continue as long as the employee does a good job. For example, suppose that an applicant is told that, "if you do a good job, there's no reason why you can’t work here for the rest of your career."
If the applicant accepts the job and six months later was laid off due to personnel cutbacks, it could be viewed as a breach of contract claim. The employee could assert that they can't be terminated unless it's proven that they didn’t do a "good job." Courts have, on occasion, held that such promises made during interviews created contracts of employment.
These open-ended questions allow applicants to tell all about their skills, knowledge, and abilities. Some examples are: "Why are you leaving your current employer?" "Do you prefer routine, consistent work or fast-paced tasks that change daily?”
The following are examples of interview questions that should be avoided in interviews because they may be alleged to show illegal bias. This is why they are illegal interview questions:
- Are you a U.S. citizen?
- Do you have a visual, speech, or hearing disability?
- Are you planning to have a family? When?
- Have you ever filed a workers’ compensation claim?
- How many days of work did you miss last year due to illness?
- What off-the-job activities do you participate in?
- Would you have a problem working with a female partner?
- Where did you grow up?
- Do you have children? How old are they?
- What year did you graduate from high school? (reveals age)
These rather simple and seemingly non-threatening questions can easily violate one of the aforementioned dangers when conducting interviews.
By instituting guidelines such as these, and making sure that your organization's managers follow them, you will have taken appropriate steps to reduce your risk of a lawsuit from an employee or job applicant.
Most companies have at least two people responsible for interviewing and hiring applicants. It's critical to have procedures to ensure consistency. Develop interviewing forms containing objective criteria to serve as checklists. Develop lists of interview questions and illegal interview questions.
These ensure consistency between interviewers, as well as create documentation to support the hiring decision if a discrimination charge is later filed by an unsuccessful applicant.