Legal Effective Interviewing

The employment interview is a vital component in the hiring process. In order to hire the most qualified candidate, members of the search committee and others involved in the selection process must be well versed in how to conduct interviews effectively. In addition, all participants in the interview process must be aware of federal and state legislation that precludes individuals from discriminating and/or asking certain questions during an interview. Each person involved in the interview process should receive training regarding the legal side of interviewing. It is not uncommon to have claims brought by a candidate based on inappropriate questions (such as questions about a candidate’s age or children) asked during the interview process.

Getting the Information You Need Without Discriminating

Following are some sample questions to get your interview started in the right direction. As you will notice, the questions are intended to encourage further discussion in each area.
 

General Questions

  • Do you understand what this job entails? (A discussion of the job can lead to interesting observations about the candidate’s abilities, experience, and enthusiasm, among other things.)
  • From what I’ve told you, do you think you’d like working at our school? Give me particular reasons.
  • What can you tell me about yourself that makes you think you’d be good at this job?
  • Do you have any other information about yourself or about your interests that you think would help me make a decision about filling this job?
  • Have you done any jobs like this before?
  • Have you ever had any hobbies or outside interests that would help you do this job?
  • You mentioned you enjoyed your last job. What did you enjoy most? What did you enjoy least?
  • Why did you leave your last job?
  • What are two things you wish to avoid in your next job?
  • What will your last supervisor tell me is your greatest strength?
  • What will your last supervisor tell me is your greatest weakness?
  • Describe for me the perfect supervisor who could help you achieve your potential.
  • Who at your last job did you get along with least? What did you do to improve the situation?
  • What are your goals three years from now?
  • If you were hiring someone for this job, what qualities would you look for?

Some schools develop a set of standard questions to use with the different positions that might be open for the current year, and they may split the questions up if there is more than one level of interviews or more than one person involved in the interviewing.

 

Questions to Avoid — And Why

There are some questions you should avoid asking entirely and others that are only permissible if phrased appropriately. Following is a summary of the types of questions that are definitely illegal or have a tendency toward exposing your school to liability for discrimination.
 
Questions concerning the candidate’s. . .
 
  • Race or color — There are no job-related considerations that would justify asking the candidate a question based on race or color.
  • Age — There are no job-related considerations that would justify asking the candidate a question based on age.
  • Religion — There are no job-related considerations that would justify asking about religious convictions, unless your school is a religious institution, which may give preference to individuals of the same religion.
  • Sex — Generally, there are no appropriate questions based on the candidate’s gender during the interview process. Specifically:
    • Women are no longer protected under state wage/hour laws regarding the number of hours worked, lifting restrictions, etc.
    • It is unlawful to deny a female candidate employment because she is pregnant or planning to have a child at some future date.
    • Questions on marital status, number of children, childcare arrangements, etc., are not appropriate.
    • 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?
  • Sexual preference — Under certain state and municipal laws, there are no permissible questions regarding the candidate’s sexual preferences.
  • 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.
  • Ancestry or national origin — You may not ask the candidate where he or she was born or where his or her parents were born. You may ask only whether the candidate is eligible to work in the United States.
  • Physical or mental disability — You may not ask whether or not the candidate has a particular disability. You may ask only whether the candidate can perform the duties of the job in question, with or without reasonable accommodation.
  • Citizenship status – You may only ask whether the candidate is eligible to work in the United States.
  • Veteran status — There are no job-related considerations that would justify asking the candidate a question regarding or based on veteran status.
  • Military discharge type — You may not ask what type of discharge the candidate received from military service. You may ask only whether the candidate served in the military, period of service, rank at time of discharge, type of training, and work experience received while in the service.
  • Arrest record — Questions relating to the candidate’s arrest record are improper, and the EEOC and many states prohibit the use of arrest records. Conviction records may be used if the school can establish a business necessity for its use during the selection process, and the school asks only for records of offenses that have not been annulled. The employer must consider three factors when deciding whether to use a conviction record in the selection process:
    • Nature and gravity of the offense for which convicted
    • Amount of time that has elapsed since the candidate’s conviction and/or completion of sentence
    • The nature of the job in question as it relates to the nature of the offense committed
  • State protected categories — You must check with the state where the school is located to determine whether there are additional protected categories. For example, some states protect employees from discrimination based on the employee’s marital status or sexual orientation.
  • Financial status — You should not ask about the candidate’s financial status or whether the candidate ever had his or her wages garnished. An 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. 
Although some of the information listed above may be necessary for personnel records and employee benefit programs, asking for the information during the interview process is illegal. For this reason, and the reasons explained above, employers should avoid asking questions that reveal the candidate’s race, age, color, religion, sex, ancestry, national origin, mental or physical disability, citizenship status, status as a disabled or Vietnam era veteran, military discharge type, arrest record, or financial status.
 
Written by Linda S. Johnson. Johnson is director of the litigation department and co-chair of the education law group at Mclane Middleton.