How to Dodge a Lawsuit When Hiring For Your Startup – Part 1

  1. Illegal Interview Questions to Avoid

 

There are many considerations when hiring a new employee, and legal strategies should be at the top of that list. Your prep work needs to begin the moment the decision is made to hire someone by preparing a list of interview questions. Using such a questionnaire will help you maintain focus and also keep your interview consistent from one candidate to the next. It will also help you avoid asking questions that could subject your business and yourself to the possibility of a lawsuit.

So let’s dive deeper into the questionnaire. There are various anti-discrimination laws in place designed to prevent employers from denying employment to people just because they are the member of some “protected class.” Federal law defines a protected class as those relating to age, disability, national origin, pregnancy, race/color, religion, familial status, veteran status, and sex. These are the areas that warrant careful navigation. In doing so, you will keep the door shut to discrimination claims down the road. Let’s talk about some specifics.

 

Interview Questions to Avoid

Nationality

“Where were you born?” Seems like a harmless question that would come up in a casual social interaction, but it’s something you can’t ask in an interview. You want to avoid questions that would force an interview candidate to reveal their national origin, or their lack of U.S. origin.

Questions to Avoid: Are you a U.S. Citizen? Where were you born? What is your native language?

Questions to Ask: Are you authorized to work for any employer in the U.S? In what languages are you fluent (but only if the question is relevant to the job)?

 

Marital Status and Family

It is natural to want to know about who you are hiring, but asking about your candidate’s home life could get you into trouble. Avoid questions about a spouse and/or kids or any other family characteristics outside of work, even if your motives are harmless.

Questions to Avoid: Are you married? Do you / will you have children? Are you pregnant?

Questions to Ask: What are some of your hobbies? What do you like to do for fun? What are you long term plans?

 

Even if you have a legitimate scheduling concern with a position that requires travel, you are still not permitted to ask an interviewee about their children. You always need to keep your questions focused on the requirements of the position – you will find this to be a recurring theme.

Question to Avoid: How will you handle childcare during travel?

Question to Ask: This position requires travel. Will this be a problem for you?

 

Age

Age discrimination is one you may have heard more about, so you may already know not to ask someone “How old are you?” But you also want to avoid questions that may indirectly force them to reveal this. Be intentional about remaining age neutral in your interview.

Questions to Avoid: When did you graduate? How long do you plan on working before you retire?

Questions to Ask: Are you over the age of 18? What are your long term goals?

 

Disabilities

The Americans with Disabilities Act prohibits asking questions about disabilities during an interview, so be sure to hold off on asking any question on the subject as it is taboo until an offer has been made. If you encounter an interview candidate with a visible disability, the Society of Human Resource Management (SHRM) recommends that you treat the person with the same respect as any other candidate, concentrate on the individual, not the disability, hold candidates to the same standard as every other candidate, and keep the interview focused on job-related characteristics.

Questions to Avoid: All

Questions to Ask: None. However, post-offer, you may work with the candidate to determine what accommodations can be made.

 

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