Staying within the lines

Conducting lawful employment interviews

The employment interview serves as a necessary and fundamental component in the hiring process. To hire qualified candidates who complement a company’s culture, interviewers must be well versed in how to question applicants effectively to obtain job-related information while maintaining compliance with federal and state employment laws. Understanding which questions are legally permissible, and which ones cross the line into protected areas, is important for avoiding claims of discrimination or bias and costly legal disputes.

Employment laws prohibit hiring decisions based on protected characteristics including race, age, color, religion, sex, sexual orientation, gender identity, pregnancy, national origin, mental or physical disability, citizenship status, veteran status, marital status, genetic information and other legally protected categories. There are federal protections and specific state-expanded protections that vary by jurisdiction. Hiring managers and HR professionals must be aware of their jurisdiction’s protected legislation.

Adherence to these anti-discrimination laws serves multiple business objectives. Legal compliance protects companies from costly litigation while fostering a workplace where all employees can contribute their strengths and perspectives. Beyond legal necessity, non-discriminatory hiring practices represent sound business strategy.

During the hiring process, companies seek to gain as much information as possible from the candidate while also respecting the law. Inquiries should seek information needed in order to judge the candidate’s qualification, skills and ability to do the job. Avoid discriminatory questions or inquiries that indirectly touch upon a protected status.

There are many questions interviewers are free to ask any applicant for any job. Permissible questions are those that are closely job-related and are not based on or regarding a category protected by federal or state law. There are only a few exceptions allowed for a bona fide occupational qualification, or when the question is required by federal or state law to be asked and legal counsel should be consulted before making any of those inquiries.

The NH Commission for Human Rights offers a “Guide to Pre-Employment Inquires.”

Below are a few examples of the proper and improper inquiries from that guide.

Criminal

Proper: Inquiries regarding convictions justified by business necessity. (But see limitation on application questions.)

Improper: Inquiries about arrest or conviction record if such inquiries have the purpose or effect of discouraging members of a particular racial and/or national origin group from applying for or obtaining employment. The use of information elicited by such an inquiry must be justified by business necessity.

Disability

Proper: Inquire whether applicant is able to perform specific job junctions with or without a reasonable accommodation. Where applicant has a known disability, applicant may be asked to describe or demonstrate how job functions would be performed. Job offer may be conditional on passage of a medical examination, provided employer requires such examination for all entering employees in that particular category.

Improper: General inquiries regarding disability. Have you ever received workers’ compensation? Inquiry into conditions or diseases for which application has received treatment. Inquiry into number of days absent because of illness during the last year.

No inquiries into family medical history per GINA.

Marital status

Proper: None.

Improper: All inquiries regarding applicant’s marital status.

Organizations

Proper: Inquiries regarding membership in unions and trade or professional organizations.

Improper: Inquiries regarding membership in social fraternities, lodges or organizations other than unions and trade or professional organizations.

Photographs

Proper: Photographs may be required only after hiring.

Improper: Request that application provide a photograph before hiring.

Religion or creed

Proper: None, except for religious organization when religious affiliation is a bona fide occupational qualification of the job in question.

Improper: Inquiry into applicant’s religious denomination, religious affiliations, church, parish, pastor or religious holidays observed.

While some questions may be necessary for personnel records and employee benefit programs, it is not legal to ask for the information before the decision to hire has been made. New Hampshire also limits employers from asking a job candidate on an application about arrests or convictions of a crime that have not been annulled by a court. Moreover, if an outside consumer reporting agency is used, companies must comply with Fair Credit Reporting Act laws.