HR Questions You Can't Ask (And How to Get Around That)

[KristineS]

I'm not sure how I feel about this article, so I thought I'd ask the rest of you. I've done interviews and hired people so I know there are certain questions you are prohibited by law from asking. I found an article (http://www.hrworld.com/features/30-interview-questions-111507/) that basically says "here's the questions you can't ask, and here's how to get the same information without asking the prohibited question".

My issue with this is that a lot of the questions are prohibited for a reason. If you're just going to try to elicit the same information by being sneaky isn't that still prejudicial?

What do the rest of you think? Would you do what the article recommends?

[Evan]

I don't see an issue with the article. The prohibited questions are clearly prejudicial. The "work around" questions really don't tackle the prohibited question spot on, and I think opens up an area to have more conversation with prospective employees than had they asked the "prohibited question".

Just my two cents.

[vangogh]

This is a tough one. The workaround questions seem generally ok, but of the purpose is to really find out the specific information in the question you can't ask I can see where they'll just lead to trouble.

In the first example:

Can't ask: Are you a U.S. citizen?
Can ask: Are you authorized to work in the U.S.?

The second question seems reasonable to ask since I would think any employer has a right to know if the person they are thinking of hiring is allowed to work. Otherwise the employer could be breaking the law.

However:

Cant ask: What religion do you practice?
Can ask: What days are you available to work?

The second question by itself is certainly fine to ask, but if the purpose is to fish for information about the first question in order to base a hiring decision on a person's religion then it's still crossing the line the first not allowed question was meant to protect against.

All of the workaround questions alone seem fine, but in combination and as a fishing expedition to find out the info in the prohibited questions they could cross into something that shouldn't be allowed.

[Steve B]

I've not read the article. But, here is a little secret. There is no such thing as an "illegal" question. However, if you use the information gained when the question is answered as part of your decision rather than legitimate legal criterial then you have broken the law.

The reason you don't want to ask these questions is because the information gained from them is irrelevant to a legal hiring decision. So, if you ask someone how old they are - but, then don't select them because there was a candidate with much better experience - the burdon of proof is now on you to prove you didn't use age in the decision.

When responding to an EEOC charge - the claimant does not have to substantiate their claim of discrimination. But, the employer must prove they made their decision based on legal criteria. It's a lot easier to do this if you don't even ask questions that will give you information you shouldn't be using anyway.

[vangogh]

That's interesting and it makes sense. It's a reason why you would then ask the alternative questions set out in the article since none of them on their own would really be seen as leading up to hiring or not hiring based on discrimination.

[Evan]

However:

Cant ask: What religion do you practice?
Can ask: What days are you available to work?

The second question by itself is certainly fine to ask, but if the purpose is to fish for information about the first question in order to base a hiring decision on a person's religion then it's still crossing the line the first not allowed question was meant to protect against.

If you expect to figure out which religious affiliation someone is based on that question, you may be shocked. Think of a low income, Catholic single mother. While Sunday may be a day you'd think she'd take off for church, her responding "I'm willing to work every day" shouldn't be too much of a shock. There are often other variables to it. One couldn't assume because she's willing to take no day off for her religious practices that she's atheist or agnostic. And to make a hiring decision based solely on that seems pretty illogical.

[vangogh]

Evan I didn't think you could figure out from the single question. I was thinking more through a combination of the questions mentioned and any others people come up with to get around the ones you can't ask.

I guess my point was if the first question is to be avoided because you can't discriminate against someone based on religion should you be able to ask a series of questions, each fine on it's own, but taken toegther are really just disguised attempts to get an answer to the question you're not supposed to ask.

I think what Steve said above is interesting and illuminating. It's not really about the question per se. It's about not discriminating, but the question might be used against you in court to show you were discriminating.

Taking that into account could the series and combination of questions be used in court against you?

[Steve B]

Absolutely - the fact that you used those questions would be used against you. If you were smart enough to ask some similar, but seemingly tame questions in order to find something out that you have no business worrying about during the hiring process - don't you think their attorney is smart enough to figure out what the interviewer was doing?

In my first response, I gave the technical answer - which is correct that there is no such thing as an illegal question. But, for all intents and purposes - the interviewer might as well think of them as illegal if that is the only thing that will stop them from asking such unrelated and potentially damaging questions.

I was an HR professional for 18 years until I gave it all up to dig in the dirt and play with dogs all day. I've answered a couple dozen EEOC complaints in two different states over the years. Honestly, a failure to hire case is very rare - instead most cases are after a person is terminated. But, we have certainly had our hiring process reviewed during affirmative action audits. The auditors always like to hear that HR is involved in the process and that interviewers attend some training before being allowed to interview. It's the rogue managers that often get a company in trouble.

O.K. - back to playing with dogs.

[vangogh]

I know if I was a lawyer trying a discrimination hiring case I'd want to see all the questions that were asked. Given that these workaround questions are much better questions since it would be harder to show you were actively discriminating based on what's asked. Each is looking for valid information you could see an HR person asking in an interview.

Makes sense too that the problems would occur more when someone is fired than when someone isn't hired.

[billbenson]

One of the questions was "have you ever been arrested". That's on every job application I have ever filled out. I would assume that short of applying for a job via a personal recommendation, if a HR person saw the box checked yes and there were other qualified applicants they would toss your job application in the trash. I've never been arrested, but if I had, I'd lie. Say you had a DUI in college 30 years ago, you would still need to answer yes to that question. A computer program screens on line applications and probably puts you at the bottom of the pile.

The other interesting one is the citizenship question as it relates to illegal immigrants. In my area there is a good sized chain of retail stores and a local warehouse. The warehouse employed several hundred workers, most of which were illegal immigrants. In the last year the illegal immigrants have been replaced by legal workers. The illegal workers purchased illegal documentation on the street including social security cards and drivers licenses. I wonder what this company and similar companies did to verify the legality of their employees. It hasn't been publicized, but I think they were hit with a catch 22. They will get fined for having illegals working there, but they can only do certain things to verify that employees are legal or illegal. I'm sure that before the current crackdown, the company was intentionally looking the other way and wanted to employ the illegal immigrants.

If you ask "how do I know they were illegal" I lived and worked in Latin America for 10 years. My wife is Latina and worked for a company until just recently for 3 years who's customer base was almost exclusively illegal immigrants. She dealt with hundreds of illegal immigrants weekly. It was a Western Union sort of business specializing in sending money to Latin American countries by illegal workers here. On a good Saturday a year ago, she would send $40k or so to Latin America from several hundred customers. A lot of them were roofers and the likes and with the housing industry at a stop, they closed the branch where she worked. She went from hundreds of clients on a Saturday to 3. That and the local crackdowns on local businesses.

[Evan]

One of the questions was "have you ever been arrested". That's on every job application I have ever filled out.

That question shouldn't be worded that way. Perhaps it was worded, "have you ever been convicted of a felony?"

Being arrested for DUI in college would obviously not be the highlight of anyones career. But DUI is a misdemeanor, assuming you're convicted. Even then, a DUI could be relevant for certain jobs that involve driving.

[billbenson]

This is from a sample job application for online.


HAVE YOU EVER BEEN CONVICTED OF A CRIME? __ No __ Yes
If yes, explain number of conviction(s), nature of offense(s) leading to conviction(s), how recently such offense(s) was/were
committed, sentence(s) imposed, and type(s) of rehabilitation. __________________________________________________

[Evan]

Convicted is the keyword. But samples aren't necessarily legally compliant either.

[billbenson]

No, but probably heavily used. Stuff happens in life. If you had been arrested for something trivial, would you put that on a job application? In your occupation you may be more heavily scrutinized, but I doubt most companies check when hiring. Actually checking after the fact, if you think you have a bad employee is a good method of firing someone.

[Steve B]

Checking for a criminal record is very easy to do and the vast majority of medium and large companies will do it as a matter of routine. It costs about $30 to have it checked and can be done very easily online. So, if you have something on your record you should list it if asked. Otherwise, you won't be hired simply for falsifying the application. It cannot be legally used against an applicant unless it is relevant to the position (i.e. child molestation for a school janitor).

It is not advisable to ask an applicant if they have been arrested. Arrested does not mean you were guilty and a disproportionate percentage of minorities have been arrested so it would potentially be evidence of racial discrimination if that were asked.

If you have a bad employee and THEN decide to check their background it doesn't help you at all. Your decision to terminate needs to be based on the poor performance.

[billbenson]

Are you sure lying on a job application isn't grounds for dismissal? It certainly was years ago in california.

[Evan]

Are you sure lying on a job application isn't grounds for dismissal?

It is grounds to be fired.

[billbenson]

That's what I thought and its an effective way of getting rid of a bad employee.