Title: Lecture Notes
Course: CMM 128 Interviewing Practices > Section: CMM 128 Interviewing Practices

Lecture Notes

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Legal and Illegal Employment Interview Questions
Guidelines for Asking Legal Questions

I.    What constitutes an inquiry? Federal and state laws apply to any employment-related inquiry dealing with hiring, firing, promoting, training, segregating and paying a person.  These interview settings include:

A.    Face-to-face interviews.
B.    Getting information from paperwork

1.    Applications
2.    Resume
3.    Letters of reference
4.    Exams

C.    Getting information from prior employers, e.g., via a letter of reference
D.    Getting information from medical tests

1.    Drug tests
2.    DNA tests
3.    General fitness tests

E.    Information provided by agents of the organization

1.    Head hunters and recruiting organizations
2.    Labor organizations
3.    High schools, colleges or universities providing co-ops, interns, or other referrals.
4.    Organizations such as the NAACP

II.    General exceptions to employment discrimination laws

A.    Questions based on Bona Fide Occupational Qualifications (BFOQ).

If an employer has a legitimate reason to ask a question (i.e., the question is a BFOQ), it is legal.  For example, it is legal to ask applicants for a firefighting position if they can carry a 200 pound body 100 feet in 30 seconds but it is not legal to exclude woman because the employer thinks no woman can do that.

B.    Questions asked equally of all applicants.

For example, if women are asked the question, "Do you have any commitments that would keep you from working overtime," it must also be asked of men.  If Hispanic applicants are required to provide three references, then applicants from other races must be required to do the same.

C.    Certain questions can be asked after a person has been hired such as

1.    Asking for a photograph (for an employee ID)
2.    Asking about marital and parental status (for tax or insurance reasons)
3.    Asking for the names of people to contact in an emergency
4.    Asking for proof of citizenship or right to work in the U.S. (required by U.S. law)
5.    Asking for proof of age

D.    Employment laws do not apply in nonemployment situations

1.    These include personal conversations, journalistic interviews, counseling interviews, persuasive interviews, and survey interviews
2.    However, if information gather in these nonemployment situations is then used in an employment contect to hire, fire, promote, train, segregate, or pay a person in a discriminatory fashion, it is illegal.

Legal & Illegal Questions

 | Lawful | Areas to avoid
Absenteeism | Have you ever been warned, disciplined or terminated for absenteeism? | How many days were you absent last year? Have you ever taken Family Medical Leave, or Workman's Compensation Leave?
Address | What's your address? How long have you lived there ? | Inquiry into any foreign address which would indicate national origin. Do you own or rent? Give the names and relationships nof people residing with you.
Age
If hired, can you provide proof that you are 18 years of age or older?
How old are you
What's your birth date?
Asking to see a birth or baptismal certificate before hiring
Discriminating against persons between 40 and 70
Arrests & Convictions
People are generally assumed to be innocent until proven guilty.
Have you ever been convicted of a crime other than a minor traffic offense?
(Even if the applicant has been convicted of a crime, it does not necessary mean they are excluded from employment.  The crime must be related to the job).
(For a position as a bank teller) Have you ever been convicted of bank robbery?
Have you ever been arrested?
Have you ever been charged with a crime?
Have you ever been indicted for a crime?
Have you ever been suspected of employee theft?
(For a position as brick layer) have you ever been convicted of bank robbery?
Birthplace | Will you be able to provide proof of employment eligibility upon being hired? | Where were you born? Where were your parents born? Show me your birth certificate.
Citizenship | Are you a citizen of the United States or eligible to work here? | Of what country are you a citizen? Were you native-born or naturalized? Are your parents citizens?
Credit Information | Generally illegal |
Education
Generally legal if BFOQ
Any inquiry that reveals race, religion or national origin.
Did you go to that school because you're African-American?
I see you went to the University of Montreal, are you Canadian?
You went to Oral Roberts, is that your religion?
Experience | Generally legal if BFOQ |
Handicaps
Federal law states that a handicapped person cannot be discriminated against if they can do the essential functions of the job with reasonable accomodations.
Handicaps include any permanent disability that affects a major life function.  Handicaps include being deaf, blind, in a wheelchair, having an chronic illness (asthma, heart condition, cancer, AIDS, epilepsy), having a mental illness, having a learning disability, stuttering, being an alcoholic or drug addict in a treatment program (note: you are only protected if you are in or going into a treatment program).
Handicaps do not include being obese, being stupid, ugliness, being a drug addict, kleptomania, homosexuality, bisexuality, being a transvestite, compulsive gambling, or having a temporary injury (e.g., broken arm)
Are you able to perform the necessary assignments of this position in a safe manner?
Do you have any handicaps that would keep you from doing this job with reasonable accomodations?
(Asked of a food service worker) Do you have tuberculosous?
Are you handicapped?
Have you ever filed a Worker's compensation or similar claim?
Do you have epilepsy?
Do you have cancer?
Do you have AIDS?
Languages | What languages do you speak | Are you a native speaker? Inquiries into how a speaker learned a language that reveal national origin. Failure to hire because of a lack of proficiency with English when it is not needed for the job.
Marital & Family Status`
Do you have any commitments that might prevent you from attending work regularly?
After hired, asking how many deductions the person wants to take for tax purposes.
After hired, asking of the person wants family members covered by insurance programs.
What's your marital status?
What's your spouse's name?
Are you pregnant?
Do you have plans to have children?
What day care provisions have you made for your children?
Are you gay?
Mental Illness | (See discussion of handicaps above) | Have you ever been treated for a mental disorder?
Military
Are you a veteran of the Armed Forces?  If yes, what type of training and education did you receive?
What type of military discharge did you receive?
Were you ever disciplined while in the service?
Have you ever served in the military of a foreign government?
Discriminating against Veterans
Name
What's your name?
Have you worked for this company under another name?
Do we need any additional information about your possible use of another name to check your previous employment?
May I call you by your first name?
Have you ever legally changed your name?
What's your maiden name?
Any inquiry which reveals race, ethnicity, national origin, religion, or other protected area.
National Origin | What languages do you speak? | What is your national origin?
Organizations | What professional or trade organizations do you belong to? | To what social organizations, clubs, lodges, or socieities do you belong?
Photographs | Requiring a photograph after hired for identification purposes. | May I include a photo with your application?
Physical | Any inquiry that is a BFOQ. Requiring a medical exam after a job has been offered. | What is your height and weight? Do you have any scars?
Polygraph | Any requirement, request or suggestion to submit to a lie detector test is illegal. | Any requirement, request or suggestion to submit to a lie detector test is illegal.
Race/Color | Generally illegal | What is your race?
References | Who referred you for a position List the names of people willing to provide professional or character references for you. | What is the name of your rabbi, minister, or pastor? Requesting references from any person who might reflect race, religion, handicap, age, etc.
Relatives | Do you have any relatives working here? (After the person is hired) Who should we contact in an emergencey? | List the names and addresses of your relatives.
Religion | Can you work on Sundays? (For a position at a College for the Evangelical Friends Church-Eastern Region) Do you believe in the Christian beliefs held by our religion? | Any inquiry about religion that is not a BFOQ. Are you a Christian?
Residence | What is your present address? How long have you lived there? | Do you own or rent? Give the names and relationships of people living with you?
Retaliation | It is generally illegal to retaliate against an employee for filing an employment discrimination lawsuit | Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act are two major federal statutes that prohibit it. There is also a provision in the Americans with Disabilities Act. Two Supreme Court decisions in 2008 extended this right to federal government workers.
Sex | Generally illegal | Are you male or female?
Smoking | This depends on the state. We have a nonsmoking at work policy, would you be willing to abide by that? | About 50% of states prohibit discrimination against people who smoke during nonworking hours according to MBAdesk.com.

(References: Greenhouse, Linda. "Justices Say Law Bars Retaliation Over Bias Claims." New York Times, May 28, 2008: A1, A18).