Five Interview Questions to Ask of Every Candidate

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Five Interview Questions to Ask
of Every Candidate
Ryan W. Green, Esq.
Dinsmore & Shohl LLP
Cincinnati
February 3, 2011
www.dinslaw.com
Hiring Process

There are many components to the Hiring Process
–
Needs assessment and position announcement
–
Application Process
–
Interviewing
–
Selection
–
Negotiating and Extending an Offer
–
Post-Offer Activities
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Hiring Process

As a Best Practice, each of these components needs to operate in
harmony and with consistency
–
Is the job description and announcement consistent with the needs
assessment?
–
Do the applicants selected for interviews match the job description and
posting?
–
Are the interview questions tailored to the job being filled?
–
Are the offer and placement for the job posted and is the selected candidate
the best qualified?
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Hiring Process

The job interview is a critical component of the overall
hiring process, where the person on paper takes life
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Why are you conducting
an interview?
–
To probe into the applicant’s experience, training and skills that
were and were not included in the resume or application

Do not just judge whether they are qualified, but how well qualified
–
To evaluate whether the applicant would work well with the
existing team
–
To explain the position the applicant seeks
–
To answer applicant’s questions about the job and the company
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Why are you conducting
an interview?

Why interview properly?
–
To find the most qualified employee to meet the requirements of
the open position
–
To avoid destroying the at-will relationship
–
To avoid a host of potential legal liabilities
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Learning Objectives
1. Learn how to avoid spending too much time on extraneous,
inappropriate or simply unhelpful topics.
2. Learn the legal risks involved of hiring unqualified applicants when
more qualified applicants are available.
3. Learn how to ask probing questions to determine whether an
applicant's background is appropriate for the job.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Learning Objectives
4. Learn how to determine whether an applicant may need an
accommodation.
5. Learn how to uncover potentially problematic criminal histories and
the legal risks associated with that line of questioning.
6. Learn what types of questions to avoid because they have a
heightened risk of creating legal liability and creating direct evidence
of discrimination.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Five Primary Interview Questions

This session is designed to provide insights about five
interview questions that should be asked of every
candidate, and why those may reduce the risk of legal
liability.

First, only lawful questions should be asked.
–
Numerous topics should never be discussed in an interview, and
many more can be covered but can be a very tricky inquiry.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Five Primary Interview Questions

Second, objective, probing questions about the candidates
true experience and qualifications should be explored.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Five Primary Interview Questions

Third, every applicant should be asked whether they fully
completed the job application and asked to supplement
any unanswered questions.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Five Primary Interview Questions

Fourth, every applicant should be prepared to answer
questions about any gaps in employment. The true
reasons for lengthy gaps may be easily explained, or could
be major red flags.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Five Primary Interview Questions

Finally, every applicant should be asked - in a lawful
manner - whether they can perform the essential job duties
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
#1
Ask Only Lawful Questions
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions

Why is this important from a legal standpoint?
–
To avoid or reduce the risk of potential claims for discrimination
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Race

There are no job-related considerations that would justify
asking an applicant a question based on race.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Race
UNACCEPTABLE
All
ACCEPTABLE
None
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions:
Religion

There are no job-related considerations that would justify
asking about religious convictions, unless your
organization is a religious institution, which may give
preference to individuals of their own religion.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Religion
UNACCEPTABLE
Inquiry into applicant's religious denomination, religious affiliations,
church, parish, pastor or religious holidays observed. (unless
employer is a religious institution)
ACCEPTABLE
None (unless employer is a religious institution)
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Gender

Generally, there are no appropriate questions based on the
applicant's gender during the interview process. Specifically:
(a) Women are no longer protected under state wage/hour laws re:
number of hours worked, lifting restrictions, etc.
(b) It is unlawful to deny a female applicant employment because she
is pregnant, or planning to have a child at some future date.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Gender
UNACCEPTABLE

Do you wish to be addressed as Mr.?, Mrs.?, Miss?, or Ms.?
Questions on marital status, number of children, child care
arrangements, etc. are not appropriate.
ACCEPTABLE
•
Questions as to availability to work should be job-related: What hours
can you work? What shift(s) can you work? Can you work on
weekends and/or holidays?
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions:
Sexual Preference

Under certain state and municipal laws, there are no
permissible questions regarding an applicant's sexual
preferences.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions:
Sexual Preference
UNACCEPTABLE
Depends upon the jurisdiction
ACCEPTABLE
Depends upon the jurisdiction
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions:
Personal Characteristics

Height and/or weight restrictions -These questions may
support gender or national origin discrimination claims
unless their relationship to specific job requirements can
be demonstrated.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Personal Characteristics
UNACCEPTABLE

What color are your eyes, hair?

What is your weight?
ACCEPTABLE
Only permissible if there is a bona fide occupational
qualification.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions:
Age

Under the EEOC's Age Discrimination Interpretive Rules
issued in 1981, as amended, a request for date of birth on
the employment application is permissible, with an
appropriate disclaimer shown. In practice, this is not asked
on applications.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions

Any recruiting effort that is age-biased such as "recent
graduate", or any question during the interview process
that deters employment because of age is unlawful. The
Age Discrimination Act of 1967 bars discrimination against
persons age 40 or over.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions:
Age
UNACCEPTABLE

How old are you?

When were you born?

When did you graduate from high school?
ACCEPTABLE

Are you over 18?

Can you verify proof of your age if hired?
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Arrest & Conviction

Questions relating to an applicant's arrest record are
improper, while questions of an applicant's conviction
record may be asked, if job related. The Equal Employment
Opportunity Commission and many states prohibit use of
arrest records for employment decisions because they are
inherently biased against applicants in protected classes.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Arrest & Conviction

The EEOC has issued a Revised Policy Statement covering the use of
conviction records by employers in making employment decisions:
–
(a) The employer must establish a business necessity for use of an applicant's
conviction record in its employment decision. In establishing business
necessity, the employer must consider three factors to justify use of a
conviction record:

(1) Nature and gravity of the offense for which convicted;

(2) Amount of time that has elapsed since the applicant's conviction
and/or completion of sentence; and

(3) The nature of the job in question as it relates to the nature of the
offense committed.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Arrest & Conviction

The EEOC's Revised Policy Statement eliminated the
existing requirement that employers consider the
applicant's prior employment history along with
rehabilitation efforts, if any. The Revised Policy Statement
requires that the employer consider job-relatedness of the
conviction, plus the lapse of time between the conviction
and current job selection process
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Arrest & Conviction
UNACCEPTABLE

Have you ever been arrested?

Do not inquire about convictions that have been
lawfully sealed or expunged.

Do you have any pending criminal charges?
ACCEPTABLE


Have you ever been convicted of a crime?
If so, when, where and what was the disposition of the case?
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: National Origin

You may not ask an applicant where he/she was born, or
where his/her parents were born. You may ask if the
applicant is eligible to work in the United States.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: National Origin
UNACCEPTABLE

What is your national origin?
Where are your parents from?

What is your maiden name?

What is your native language?

Avoid inquiry into use of how applicant acquired ability to read, write
or speak a foreign language.

ACCEPTABLE



Are you legally eligible for Employment in the United States?
Have you ever worked under a different name?
Inquiry into languages applicant speaks and writes fluently may be
okay. (If the job requires additional languages)
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Financial Status

An interviewer should not ask if the applicant owns or
rents a home or car, or if wages have been previously
garnished, unless financial considerations for the job in
question exist. Any employer who relies on consumer
credit reports in its employment process must comply with
the Fair Credit Reporting Act of 1970 and the Consumer
Credit Reporting Reform Act of 1996.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions:
Financial Status
UNACCEPTABLE

Do you own your own home?

Have your wages ever been garnished?

Have you ever declared bankruptcy?
ACCEPTABLE
Credit references may be used if in compliance with the Fair Credit
Reporting Act of 1970 and the Consumer Credit Reporting Reform Act
Of 1996.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Military Record

You may not ask what type of discharge the applicant
received from military service. You may ask whether or not
the applicant served in the military, period of service, rank
at time of discharge, and type of training and work
experience received while in the service.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Military Service
UNACCEPTABLE

What type of discharge did you receive?
ACCEPTABLE
 What type of education, training, work
experience did you receive while in the
military?
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Disability

You may not ask whether or not the applicant has a
particular disability. You may only ask whether or not the
applicant can perform the duties of the job in question with
or without a reasonable accommodation.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Disability
UNACCEPTABLE
 Do you have any job disabilities?
 Have you ever filed for workers’ compensation?
 Do you have any medical problems?
 How much sick time/medical leave did you take last year?
ACCEPTABLE
 Can you perform the duties of the job you are applying for?
 If a disability is obvious, you may ask about
accommodations.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions

Although federal EEO laws do not specifically prohibit any
pre-employment questions, the EEOC does look with
"extreme disfavor" on questions about age, color,
disability, national origin, race, religion, gender or veteran
status. Many state fair employment laws do expressly
forbid certain types of questions.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Other areas of concern

Reliability and attendance

Organizational affiliations
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Reliability and Attendance
UNACCEPTABLE

Number of children?




Who is going to baby-sit?
What religion are you?
Do you have pre-school age children at home?
Do you have a car?
ACCEPTABLE

What hours and days can you work?

Are there specific times that you cannot work?

Do you have responsibilities other than work that will interfere with
specific job requirements such as traveling?
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ask Only Lawful Questions: Organizational Affiliations
UNACCEPTABLE
List all clubs, societies and lodges to which you belong
ACCEPTABLE
Inquiry into applicant's membership in organizations which
the applicant considers relevant to his or her ability to
perform job.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
#2
Ask Probing Questions to Assess
Qualifications
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Is the Candidate Really Qualified?

Resumes and applications can look and sound impressive,
but people . . .
–
Lie
–
Exaggerate or stretch the truth (intentionally and not)
–
Misunderstand what the job really is
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Is the Candidate Really Qualified?

Ask questions about the candidate’s experience in the
context of the requirements of the position being filled.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Is the Candidate Really Qualified?

Why is this important from a legal standpoint?
–
Potential failure to hire and promote claims

Hiring a candidate who is less qualified than a candidate in a
protected class can lead to allegations of bias and discrimination

It is difficult to defend cases where the hired or promoted employee
is not only clearly less qualified, but unqualified for the job
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Is the Candidate Really Qualified?

Why is this important from a legal standpoint?
–
Conducting a thorough vetting of job related qualifications will
determine who is the best qualified individual
–
What are the pros and cons of documenting the relative merits of
candidate qualifications?
–
“I just liked them better” or “they fit in better” can be a very
difficult defense without more, even if there is no actual
discrimination
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Is the Candidate Really Qualified?

The interviewer should understand what the job
requirements are for the position being filled, be prepared
in advance by reviewing applications and resumes and
have questions tailored to understand the experience and
relative differences in candidates’ qualifications
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
#3
Be Sure the Application is
Complete
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Why Have a Complete Application?

Why have an application if it is not going to be complete?
–
Applications are the source of much information useful to the
interviewer to evaluate the candidate’s experience
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Why Have a Complete Application?

Why have the candidate acknowledge the application is
complete?
–
Failure to disclose certain information could support a later
dismissal of an employee
–
Failure to disclose certain information can lead to the defense of
“after-acquired evidence” if litigation ensues
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Why Have a Complete Application?

The application is standardized and is the candidate’s
voice
–
This provides objective information about the qualifications of an
applicant that can be readily compared at a later time, and by
others, of the applicant pool’s qualifications and experience
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
#4
Inquire about Gaps in
Employment
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Why are Employment Gaps Important?

This is a particularly important factor to consider in the current
economic climate

As we exit the Great Recession, it will be especially difficult and
important to evaluate whether gaps in employment suggest an
otherwise capable employee caught up in the economic tide, or, a bad
employee that would have been unemployed for periods of time in
spite of the economic conditions.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Why are Employment Gaps Important?

Asking about such gaps will often lead to the free
disclosure of important information
–
For example . . . “I was fired for punching my boss – but he
deserved it and I had trouble finding another job.”

This would be helpful information to know in making a hiring
decision
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Why are Employment Gaps Important?

But be careful . . .
–
For example . . . “I had some medical issues and had to be off
work.”

DO NOT follow up and ask what was wrong, etc.
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
#5
Can you Perform the Essential
Job Duties
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Disability Inquiry

We talked about this before . . .
–
There is a very limited context in which you can inquire about
physical limitations

Can the applicant perform the essential job duties
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Disability Inquiry

Know what the essential job duties are
–
It is somewhat problematic to determine whether someone can
perform the essential job duties if they are not defined, poorly
defined or the interviewer is unaware of what they are
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Disability Inquiry

What about the TMI (too much information) interviewee?
–
Everyone who interviews applicants will occasionally encounter people who
provide far too much personal information
–
Resist the opportunity to engage in a detailed discussion about what
limitations a person may have and direct the conversation back to the job
duties and the individual’s ability to perform them, with or without a reasonable
accommodation
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Practical Tips

Prepare and update job descriptions

Clearly communicate the job requirements to applicants

Clearly communicate the job requirements to interviewers

Ensure job applications are complete

Train, train, train interviewers to follow these tips and strategies

Find the most qualified employees as possible during the interview
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
QUESTIONS?
© 2011 Dinsmore & Shohl LLP | www.dinslaw.com
Ryan W. Green, Esq.
Colleen P. Lewis, Esq.
www.dinslaw.com
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