Among those in the know—managers, department heads and human resources professionals—everyone seems to agree that interviewing is one of the most difficult aspects of the hiring process. In addition to the obvious pressure—this may be your only chance to meet the candidate and decide whether he or she is a good fit with the company—there are laws and regulations that you can't ignore. Ask the wrong question and your company could wind up defending itself in court. Fail to get something as basic as a written signature on an employment application and you could put your company at risk of a wrongful dismissal suit later on—even if the candidate used the form to exercise his or her creative writing skills. In short, the bywords of interviewing today are don't ask, don't (let them) tell, and get it in writing.
Don't ask … and don't let them tell
Most experienced interviewers know by now that they cannot ask an applicant, either in written form or via verbal encouragement, about their age or religion or let these factors influence their hiring decision. But what they may not realize is that this rule even extends to the notations they make to themselves during or after the interview. For example, after meeting with applicants, one hiring manager jotted down some notes to himself characterizing the candidates with phrases like "bright, young, aggressive" or "well seasoned." In one case, these notes provided the evidence used by a 59-year-old applicant who was not hired to obtain a $100,000 award in a successful age discrimination suit. You should also vet your job applications for wording that could force candidates to reveal this information indirectly. For example, asking the date of military discharge would narrow the applicant's age down to a given range, which could potentially be interpreted as discriminatory.
Stay away from any questions having to do with children. You are not allowed to request any information information regarding the age of an applicant's children or even whether the applicant has children, much less about childcare plans or plans to have children. In fact, you cannot even ask, in any fashion, about an applicant's marital status.
In this time of concern over terrorism and global conflict, some businesses may have concerns about an applicant's country of origin. However, you can't let these fears affect your hiring decisions. Under the law, you cannot ask applicants where they were born, and their birthplace or status as a U.S. citizen cannot enter into your decision to hire. But how can you be sure you aren't hiring an illegal worker? You can—and should—include a notice of eligibility on your job applications. This statement would inform applicants that should they be offered a job, they would have to affirm that they were citizens or provide proof of lawful work status.
The list of proscribed topics isn't limited to age, family information and country of origin, however. You should not ask for an applicant's maiden name, military discharge status, garnishment records, emergency contacts or transportation plans. In truth, none of these, with the possible exception of transportation plans, has anything to do with an applicant's ability to do any job. With regard to transportation, it is tempting to want to ask an applicant's plan for getting to work, especially when you are dealing with minimum wage employees. But you cannot ask about this. All you can do is establish a very specific termination policy with regard to lateness and absences, provide it in writing and enforce it.
Get it in writing …
There's a reason why some things are done in writing (further evidence of why we are unlikely to ever become a paperless society). It is strongly suggested that you insist on a signed application from every person considered for a position with the company, including those being interviewed for upper-level management slots.
A statement that all information provided—on this application, on any submitted resume and communicated in a verbal interview—must be true and accurate should be placed immediately above the signature area of the application. But don't stop there: Add that anyone found to be providing false and/or inaccurate information will be terminated for cause. And unless you will be using an employment contract, your written application should also include a statement that staff members are employed at will and can be terminated without notice or cause.
What about the applicant who volunteers on the employment application some of the information you can't ask about? As surprising as it may sound, that could mean trouble later on. Even though you didn't ask for that information, you could be vulnerable to a lawsuit should the applicant later claim that any extra information supplied to you was used to illegally reject him or her. Therefore, play it safe and include a written statement that any application or resume that includes extra information will not be considered at all.
One of the most important things you should ask for is the applicant's signature. You must be able to prove, incontestably, that this prospective employee was fully informed about all critical aspects of the hiring process in case someone raises questions about its legality. This is one of the best reasons to insist on a completed application, even from candidates submitting resumes. Many times, resumes omit information you consider pertinent and even important. Information provided on the application should fill in the holes.
When it comes to hiring, choosing the best candidate is only half the job. The other half is making sure that you part ways with the rejected applicants on civil terms, not in civil suits.
Gartner, Inc.