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How to Interview Candidates, Part 3: Keeping It Legal

How to Interview Candidates, Part 3: Keeping It Legal

Louise Kursmark,

March 01, 2008

Fair hiring laws were enacted to give every candidate a fair shake in the interview and selection process. Yet more than 40 years after the first of these guidelines became law, job candidates today still are asked questions that are illegal, insulting, and irrelevant to job performance. The keys to eradicating this kind of behavior are ongoing education and consistent interviewing and selection practices.

Planning and Preparation are the First Steps

The planning process described in Part 1 of this series prepares you to ask candidates about only the essential skills and qualifications required, and helps prevent you from asking off-the-cuff questions that could be illegal.

As an HR professional, it is your job to train and guide hiring managers and other company interviewers in fair hiring practices. Many companies mandate a formal training program before any employee is permitted to interview candidates; it’s also a good idea to provide a written overview for all interviewers and a brief refresher curriculum from time to time. And it is the responsibility of the HR department to stay up to date on new laws and legal interpretation of existing acts.

Job Relevance Is the Key Factor

Your interview questions should be designed to determine a candidate’s capability to perform the essential functions you have defined for the job. Just be sure to couch your inquiries in job-relevant language, and don’t make assumptions about a candidate’s ability or disability.

For example, let’s say you are interviewing a wheelchair-bound candidate for an account manager position, and you have determined that an essential function of the job is to visit client sites. It’s perfectly legal to ask how the candidate would perform this essential function:

“This job will require you to be out of the office meeting with clients several days per week. Can you tell me how you would get around?”

It is not OK to say to this same candidate, “How long have you been disabled?”

In other areas, where a disability is not visible, again you should confine your questions to essential job functions or workplace environment issues. For example, while you cannot ask a candidate if he or she has children or has adequate child care, you can ask about ability to perform the job:

“This job requires you to travel overnight about 2 days per week and to attend out-of-town conferences once per month. Does this travel schedule prevent a problem for you?”

Poll: How do you feel about crying at work?

Poll: How do you feel about crying at work?