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Beware Illegal Interview Questions

“When illegal interview questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis,” said David Lopez, EEOC General Counsel. At HRinDemand, we want to be sure that small business owners are careful in their hiring process and in particular in the questions asked during interviews.

Refrain from asking about health related information, instead frame questions in the context of the ability to do the job. If a candidate brings up health or disability related information, stay on track in determining if they can perform the essential functions of the job.

If you have more than 15 employees, you must engage in the interactive process if someone requests a reasonable accommodation under the American’s with Disabilities Act requirements. These situations get very complicated quickly and it’s easy to take a misstep. Take care in how you ask questions, in what you talk about in interviews and what you write down in interviews. If an applicant isn’t hired and believes it’s due to a health condition or disability, they can make a complaint and the employer then has to prove why the decision was made (assuming the employer has over 15 employees and is held accountable for compliance with Equal Employment Opportunity laws).

Tips for avoiding illegal interview questions:

  1. Don’t ask illegal interview questions about health conditions, age, disabilities, etc.
  2. Be cautious in what you write during the interview – notes become record and can be subpoenaed.
  3. Have a standard selection process that evaluates candidates evenly and documents how hiring decisions are made.
  4. Avoid hiring decisions based on notions that someone isn’t capable of doing the job because of something they mentioned in the interview about a condition or disability, such as carpal tunnel syndrome.
  5. If you have 15 or more employees and a candidate brings up a disability, engage in the interactive process. If you are unsure how to proceed, talk to an HR professional or an attorney.

HRinDemand is committed to helping small businesses avoid unintentional missteps in the hiring process and the entire HR process. If you have questions, call us at 775-400-1322. Join our mailing list (at the bottom of our homepage) for regular updates and HR Tips.

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