Hiring – What Can I Ask a Candidate During an Interview?

As an employer, you may be wondering what questions you can—and cannot—ask during a pre-employment screening interview.  Having a plan in place before you begin interviewing can help avoid asking illegal questions and exposing your company to liability.  Moreover, if you are not the individual conducting the interviews, extra care should be taken, and other interviewers should be trained.

What Not to Ask

You cannot ask about an applicant’s religious beliefs, union activities, marital status, or other prohibited subjects; it is discriminatory to make employment decisions on those grounds.  In addition, because of the Americans with Disabilities Act (ADA), you cannot inquire as to whether an applicant has a disability. You may, however, ask questions that relate to an applicant’s ability to perform job-related functions.

The Wisconsin Department of Workforce Development (DWD) has issued a guide for employers titled “Fair Hiring & Avoiding Discriminatory Interview Questions”, which outlines questions that should not be asked as part of an interview.  For example, you should not ask:

  • What is your age or date of birth?
  • Do you have children or do you plan to have children?
  • Are you married?
  • What country are you from? Are you an American citizen?
  • Have you ever been arrested or convicted?

Prepare for Sticky Situations

Even if an applicant volunteers information on one of these “do not ask” subjects, you should not pursue the subject.  Pursuing the subject could open you up to liability.

If an applicant asks whether your company hires minorities, members of a certain religion, females, older workers, or union supporters, you should respond by stating: “Our company hires the most qualified applicants, without regard to their race, color, creed, sex, religion, age, disability or union preference.”

If an applicant makes accusations of discrimination, you should respond by stating: “We are an Equal Opportunity Employer. We do not discriminate on the basis of race, religion, color, sex, age, national origin, disability, or any other basis protected by federal, state, or local law.”

What to Ask

Generally, questions should be tailored to subjects which are necessary to evaluate an applicant’s suitability to perform a particular job.  In other words, you should only ask questions that will provide information about the person’s ability to do the job, with or without a reasonable accommodation.

We would recommend use of an interview form to structure the interview and avoid the chances of asking improper questions.  This will help ensure that the interviewer stays “on topic”, and all applicants are asked the same questions.

In deciding what to ask, review the essential functions of the job. Ask yourself, what skills will an applicant need in order to perform the job successfully? What kinds of interview questions will help determine if an applicant can perform the functions of the job? If you intend to pre-screen applicants, develop objective and relevant benchmarks, and apply them uniformly.

Examples of questions you can ask include:

  1. Availability:
    • Job hours are ______.  Are you available to work that schedule?
    • Are you looking for full-time or part-time work?
  2. Qualifications
    • Why would you like a job here?
    • Why do you think we should hire you?
    • Review the essential job functions of the position; this will vary by position.  Does the applicant meet all of the requirements?
    • What are your strong points that would affect your potential employment?
    • What are your weak points that would affect your potential employment?
  3. Employment history:
    • Are you currently employed?
    • For current and past jobs:
      • What were your job duties?
      • How would you rate your work?
      • Why did you leave (or why do you want to leave)?
      • How much did you earn when you started? Ended?
      • How many days were you absent from your job last year? (NOTE: Do not ask the applicant to explain why they were absent.  If they have a disability, asking could raise an issue with the ADA.)
      • Did you ever receive any warnings at work (written or verbal)? If yes, how many and for what reasons?
      • Were you ever suspended from work?
      • Were you ever discharged from work?
    • If there are gaps in employment history, what did you do between jobs?

Following these steps will help avoid potential lawsuits.  If there are other questions you would like to ask but are unsure whether you would be permitted to ask, please send them to us for review.

Other Areas to Review

In addition, other areas of the hiring process that should be reviewed to avoid potential claims of discrimination include:

  1. Do you provide job description to potential applicants?
  2. Do advertisements state the essential function of the job?
  3. Do advertisements include a statement that your company does not discriminate?
  4. Does your company use written job application forms?  Have these forms been reviewed and/or updated?
  5. Does the application form ask only job-related questions, and not for information that could be considered discriminatory?
  6. Do you require applicants to certify that the information they give on the job application is accurate?
  7. Do you require applicants to give written authorization for conducting reference checks?

If you have any questions about this article, please call us at 262-334-3471.  If you would like to discuss further, or if you would like us to review any of your existing documents used as part of the hiring process, please do not hesitate to call us.

Disclaimer: The information contained in this post is for general informational purposes only and is not legal advice. Due to the rapidly changing nature of law, Schloemer Law Firm makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your unique circumstances before deciding to take—or refrain from taking—any action.  If you need legal guidance, please contact us at 262-334-3471 or [email protected]

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