#Interviewing Applicants? What Employers Can’t Ask in Interviews

By Tiffani L. McDonough on July 14, 2014 Posted in Hiring

If you are the interviewer, there actually is such a thing as a stupid (and perhaps unlawful) question in an interview. The key to developing appropriate interview questions that are both useful in obtaining relevant information and also legal is to train those involved in the interview process. Participants in the interview process, regardless of whether they are decisionmakers, should fully understand what information should not be solicited during telephone screens or interviews of applicants. Even the most cautious employers, however, may face litigation from a disgruntled applicant who believes that he or she was treated unfairly in the hiring process. Recognizing these potential legal pitfalls and training those involved in the interview process is the best way to avoid asking the wrong question during an interview.

Explain how your military service will enhance your ability to do the job.

What happens if the applicant offers impermissible information during the interview?

If the applicant offers information that the employer should not consider, the interviewer is advised to redirect the discussion to job-related information rather than inquire further into the topic. For example, if an applicant responds to information regarding hours of employment by saying he has to pick up his child from day care, the interviewer should reframe the question to ask if the applicant will be able to work the hours required by the position rather than asking questions about the applicant’s childcare responsibilities, marital status, etc.

What records should be maintained from the interview process?

Maintaining documentation from the interview is important especially if the employer declines the candidate based upon the interview. Interviewers should be encouraged to write down key words or ideas during the interview that are objective and job-related. Interviewers should forward all notes regarding a candidate to the designated point person. This includes any email communications about the candidate or employment decision. The human resources department should also maintain all applicant tracking and other information. Notes from all reference checks (including the date, time, and identity of the reference) should be retained with the entire application package.

As a best practice, all materials used as part of the interview process should be maintained for a period of at least one year from the date of the personnel decision of the applicant (or, in the case of an employee, at least one year from the date of termination). This retention period may be longer if the employer has affirmative action obligations or is required by regulatory agencies to maintain records for a longer period of time.

*Adapted from Tiffani L. McDonough, Esq. Interviewing and Hiring. in Pennsylvania Employment Law Deskbook (forthcoming Pennsylvania Bar Institute 2nd ed. 2014).