The line between an appropriately probing interview question and the kind that could slap your company with a discrimination lawsuit has grown increasingly difficult to navigate.
Misfire, and the consequences might be more expensive than you think.
When UCLA researchers studied California employment discrimination cases in 2007 and 2008, they found plaintiffs won about half those that went to trial in civil court.
The median jury award was just over $200,000 but ranged up to the low seven figures. Employers also paid median legal costs of $150,000 to defend those cases settled by trial.
Employers were nailed for race and national origin discrimination as well as discrimination for medical conditions and sexual orientation, among others. The federal Equal Employment Opportunity Commission maintains an impressive list of all kinds of illegal discrimination, ranging from sexual harassment to age discrimination. And the list grows steadily. In 2009, a new federal law added genetic information to the roster of illegal foundations for discrimination.
The grounds for some successful discrimination lawsuits begin as early as the first job interview, when the employer asks a question that produces information later used for illegal discrimination. With that in mind, The Debunker came up with these seemingly harmless interview questions that could, if all goes wrong, cost you $1 million:
Question #1: I see you speak Spanish. Where did you study it?
The problem: According to a guide to risky interview questions prepared by the University of Albany, if the applicant says, “I learned it at home,” you may have just gathered information about an applicant’s ethnic background that could later on be used as grounds for a discrimination complaint.
Question #2: How many sick days did you take last year?
The problem: Sure, you’d like to avoid hiring a malingerer at your business, but a list of thin-ice questions from HR Morning warns that a candidate’s health information is legally none of your business.
Question #3: How long have you lived here?
The problem: “Familiarity with local culture may be important to the position, but it’s important not to ask about a candidate’s residency in the country or region directly,” advises HR World. You can ask for a candidate’s current address and phone number, but quizzing someone about their tenure in the region or country could go over the line.
Although many lists of “illegal” interview questions like these exist, arguably, none of these questions is actually illegal, nor is there a law against asking anyone almost anything, short of whether they would like to, say, commit an act of terror. The question of legality depends on the purpose for asking the question and whether the information is used for purposes of illegal discrimination.
Let’s say you ask a woman applicant’s name. If you do it in such a way as to find out her marital status by, for instance, asking for her married name or whether she goes by “Miss” or “Mrs.” and then don’t hire her because she’s single, you may have broken the law.
If it all sounds impossibly confusing, remember that although the EEOC received about 100,000 complaints of discrimination last year, that still means millions of people were hired (or not hired) under circumstances that nobody thought were bad enough to file a complaint.
Employment law experts like to say that if you are merely fair, open, and consistent in the way you treat applicants and employees, you should have no problem with the discrimination laws. Still, bear in mind that the next question you ask in a job interview could cost you seven figures. That should keep you as fair, open, and consistent as humanly possible.
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