Don't ask that

Every business owner is excited when it is time to add employees. That accomplishment says you are doing all the right things and growing your company. So when it comes time to sit down with the applicants wanting to join you, you want to be sure to ask the right questions. Of course, that means there are some wrong questions that you don’t want to ask. Let’s talk about those first. Some of the examples may seem a bit silly, but they illustrate the inadvertent traps that exist.

“Oh, that’s a great school. I love their mascot! Were you there when so-and-so coached the team?”

Obviously, in this example, it doesn’t matter if you actually love the school’s mascot or miss a particular coach, the issue is you can’t try to back into someone’s age.  A similar type of question is “How long do you plan to work until you retire?” Again, it is fishing for an age, and it also tells someone you think they appear old.

“Wow! You’re tall. I bet you played basketball in school, right?”

It may seem like just a continuation of March Madness excitement, but it can lend itself toward disability-type responses. For example, someone may be tall or short based on a genetic condition. This line of questioning should also avoid weight or other appearance inquiries. A similar type of question to avoid here is “That’s an impressive scar – how’d you get that?”

“Do you drink socially?”

Your team may love Thursday night cocktails together, but you can’t ask an applicant if they intend to participate. This can run afoul of disabilities legislation. A similar type of question to avoid is “Do you do drugs?” This can go to disabilities and other protected health information (i.e., the applicant takes daily medication for a chronic illness). The EEOC (which enforces the federal anti-discrimination statutes) considers prior alcohol and drug addition to be disabilities that are protected.

“You have a beautiful accent – where is it from?”

They may have one and you may honestly love it, but obviously, questions that go to someone’s national origin or ethnicity are prohibited. Similar types of question here that should be avoided are “What country are you from originally?” or “Where did you learn all of those languages?”

“Is that your married name? It’s so pretty.”

While this may be normal getting to know you question when you’re out with someone over coffee, they are unacceptable in an interview context. The question elicits information about martial status, familial status and sexual orientation. And depending on the last name, it may also go to ethnicity and national origin. A similar type of question to not ask is “What does your spouse do for a living?”

“Any kids yet? Want a big family?”

Basically, questions about reproductive capability and interests are all off limits. Similar types of questions to avoid are “Who will watch the kids when you’re at work?” and “If you get pregnant, will you become a stay-at-home mom?” Naturally, these questions tend to be directed most at women.

“What clubs or groups do you belong to?”

Another great cocktail hour conversation started, but a bad interview question. Why? This can uncover someone’s ethnic, political and/or religious identity.

“You have the most beautiful skin tone. What are you?”

It’s hard to imagine that anyone today thinks that a discussion of race, ethnicity or national origin are appropriate in an interview context, but just to be clear: these are all off limits.

So what are good questions to ask?

  • Are you able to meet the work schedule requirements without any trouble?
  • Are you eligible to be legally employed in the United States?
  • Are you able to meet the physical requirements of the job (note: only if applicable) in a safe manner?
  • Are you able to travel as necessary for the job?
  • What are your long term career plans?
  • Do you currently use any illegal drugs?

The best questions are designed to elicit behavioral descriptions of the candidate’s capability to perform the essential functions of the role. Many of those questions start with the following phrase: “Describe for a me a time in your career when you did X” with “X” being a key attribute for the position.

Included below is a summary to help navigate some of the major anti-discrimination statutes (Federal and NYS) that are applicable in the hiring process. (It should go without saying that this is a highly distilled list and the determination of applicability to your business should be done by an attorney qualified in your jurisdiction and familiar with your firm.)

Federal Legislation:

Title VII of the Civil Rights Act of 1964

  • Prohibits discrimination based on: Race, Color, Religion, Sex or National Origin
  • Applies to employers with 15+ employees

Equal Pay Act of 1963 (“EPA”)

  • Prohibits sex-based wage discrimination
  • Applies to employers with an annual volume of sales or business of at least $500,000

Title I of the Americans with Disabilities Act of 1990 (“ADA”)

  • Prohibits discrimination based on disabilities
  • Applies to employers with 20+ employees

Age Discrimination in Employment Act of 1967 (“ADEA”)

  • Prohibits age discrimination for applicants 40+ years old
  • Applies to employers with 20+ employees

Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”)

  • Prohibits discrimination based on genetic information
  • Applies to employers with 15+ employees

New York State Legislation:

Section 296 of the Human Rights Act of New York State

  • Prohibits discrimination based upon age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status
  • Applies to employers with 4+ employees

As I said at the beginning, hiring an employee should be an exciting time. Make sure that you conduct the interview in a way that brings about good results … and not litigation.

The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Francine E. Love
Connect with me
Founder and Managing Attorney at Love Law Firm, PLLC which dedicates its practice to New York business law