Avoid these interview questions to avert legal trouble

May 30, 2019
Jeffrey H. Schick, CVPM, Esq

Jeffrey Schick, CVPM, ESQ is an Animal Health Attorney that graduated from the University of Pennsylvania Law School. The son of two veterinary dermatologists, Jeff grew up in the clinic, and now uses his experience to help veterinarians and animal health manufacturers. When not practicing law, you can find Jeff at the beach with his family and their Rhodesian Ridgeback puppy.

Hiring is hard enough without having to worry about being sued by a prospective candidate. Heres a rundown of the questions you need to refrain from asking during the interview process.

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Every veterinary practice considers the hiring process with a single goal in mind: to attract the best talent so you can provide your patients with the best care possible. What owners and hiring managers sometimes don't consider, however, are the many new and changing federal and state employment laws. And that can get you into trouble when interviewing prospective candidates. Practice owners need to know that avoiding questions that are “off limits” is not just smart business practice; it's the law.

Ideally, interviews should be conducted in a structured format, with all candidates asked similar, exclusively job-related questions. If the candidate volunteers details about a disability, marital status or other protected information, the interviewer should disregard those statements and attempt to bring the interview back to the structured questions. Only individuals who are familiar with federal and state laws, and trained on which questions to avoid, should be present during interviews.

Here are the top “illegal” interview questions as well as alternative ways to seek certain types of information.

Avoid

Do you smoke/drink/use marijuana?

Some states have made tobacco smokers a protected class entitled to protection against discrimination, and some states now have laws that protect individuals who use medical marijuana outside the workplace, even though it is still illegal under federal law. Additionally, some courts have found alcoholism to be a protected disability under the Americans with Disabilities Act (ADA).

Allowed

Although you should not ask the candidate about alcohol, tobacco or marijuana use, you are entitled to communicate your hospital's policy on alcohol and drug use in the workplace (if you have one). Should you use this approach, however, you must communicate these policies in the same manner for every applicant.

Avoid

How much did you earn in your last job?

In an attempt to narrow the wage gap between men and women, many states and municipalities have adopted laws that restrict employers from asking applicants about their salary history during the hiring process. Furthermore, in some states and municipalities it is illegal to use an applicant's pay history to make employment decisions. This is because if an applicant previously worked for a discriminatory employer, and you use that salary to make your employment decision, you are perpetuating the discrimination.

Allowed

You can provide the candidate with the starting salary (or salary range) for the position, and you may ask whether the candidate would accept the salary should you offer a position. However, be sure to inform the candidate explicitly not to reveal earnings from their prior job when answering the question.

Avoid

Can we take a look at your personal social media accounts?

Can you provide us with the username and password for your personal social media accounts?

Many states prohibit asking applicants or employees for log-in information for their personal social media, email and other internet accounts. Using passwords without the employee's authorization is similarly prohibited.

Allowed

Nothing.

Avoid

Have you ever sued an employer?

Have you ever filed a sexual harassment complaint?

Have you ever filed a claim with a government agency against an employer?

These questions all target protected conduct-namely, an employee's right to stand up for their employment rights-and could lead to an inference that the employee was not hired because they had exercised their employment rights, or that you are not hiring an employee as retaliation for making a prior claim.

Allowed

Nothing.

Avoid

Are you a man or woman?

Are you sure your name is ____?

Are you transitioning?

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of gender. Federal, state and municipal courts have now begun to extend this restriction to prohibit discrimination on the basis of gender identity and/or gender expression.

Allowed

Nothing.

Avoid

What gender is your spouse?

My religion doesn't recognize your marriage.

Many states and municipalities prohibit discrimination on the basis of marital status or sexual orientation. Statements or questions regarding an applicant's marital status could be seen as discriminatory on the basis of religion, sexual orientation, gender or marital status and thus should be avoided at all costs.

Allowed

Nothing.

Avoid

Have you ever been arrested or convicted of a crime?

“Ban the box” laws in many states prohibit employers from asking applicants prior to extending a job offer whether they have been arrested or convicted of a crime. Ensure that your job applications and interviewers refrain from asking questions that could lead to a disclosure of arrest record or convictions.

Allowed

After making a job offer, you may conduct a criminal background check. This background check should be related to the specific duties of a particular position. Consider the totality of the circumstance surrounding the offense, the applicant's criminal history, prison time, and employment and character references when making employment decisions based on criminal history. When in doubt, consult a lawyer before making your employment decision.

 

Avoid

Have you ever filed a workers' compensation claim?

Many states prohibit discrimination on the basis of an applicant's or employee's workers' compensation claim history. Questions regarding workers' compensation history could also indicate whether an employee has a disability, which is protected information under the ADA.

Allowed

Nothing.

Avoid

What religion do you practice?

Can you work Friday, Saturday or Sunday?

Employers are prohibited under Title VII of the Civil Rights Act of 1964 from discriminating against applicants or employees on the basis of religion. Religious nondiscrimination prohibitions protect both religious beliefs and religious practices from unlawful discrimination.

Allowed

You may confirm that the applicant is able to work the days, hours and shifts required for the position. However, this question must be applied uniformly, and you cannot change the days based on your perception of someone's religion. You may be required to reasonably accommodate an employee's religious belief or practice, such as allowing the employee to trade shifts with another team member or take breaks to pray.

Avoid

Why do you wear that headscarf?

Two answers to this question could result in legal liability for your practice. The first is that the headscarf is worn for religious reasons, and the interviewee reveals their religion. The second answer is that the headscarf is worn due to chemotherapy or other medical treatment, which would indicate that the applicant has a disability/medical condition.

Allowed

You can discuss the hospital dress code, and you can ask whether the applicant can comply with or without a reasonable accommodation. However, be prepared to discuss possible accommodations. Should you choose to use this tactic, ask this question of all applicants in the same manner.

Avoid

How old are you?

We went to the same high school! When did you graduate?

We are looking for a long-term team member. Do you plan to retire soon?

Under the Age Discrimination in Employment Act, employers are prohibited from discriminating against applicants and employees over age 40. Many states also prohibit age discrimination and may even prohibit reverse discrimination against young applicants and employees. Asking when someone graduated from high school may be considered a sly way to find out an applicant's age.

Allowed

Nothing.

Avoid

Your accent is so cool. Where are you from?

Where were you born?

Are you American?

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race or national origin. Asking an applicant or employee about their accent and other race-related questions could lead to an inference of disparate treatment on the basis of national origin (or race). An employer may ask whether a candidate is legally authorized to work in the United States, but it must be asked of all applicants, not just those who “look foreign.” Such a practice would be considered disparate treatment discrimination.

Allowed

Nothing.

Avoid

Are you pregnant?

Do you plan to have kids?

These questions are illegal under federal and many state laws, which prohibit employers from discriminating on the basis of pregnancy. Avoid questions about pregnancy, including whether an applicant is pregnant or plans to become pregnant.

Allowed

Nothing.

Avoid

Do you have children?

Are you married?

Who takes care of your children?

Many states prohibit discrimination against an applicant or employee on the basis of marital or familial status. Additionally, some courts have upheld questions regarding marriage to support an inference of discrimination on the basis of sex or marriage, especially if the employer has an inferred practice of discrimination against LGBT employees/applicants.

Allowed

Nothing.

Avoid

Do you have a disability?

How often did you use sick leave in your previous job?

Have you ever taken an FMLA leave?

Will you need a reasonable accommodation on the job?

The ADA and state laws prohibit employers from asking applicants about their disabilities. State laws also may prohibit employers from asking interview questions that force a candidate to reveal their disability.

Allowed

Nothing.

Avoid

Do you have military service obligations that will require you to miss work?

Will you be able to work weekend shifts?

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) prohibits employers from discriminating against applicants and employees due to past, present and future military service. Not only is it against the law to discriminate against service members, but it could put your practice in a negative light if the applicant seeks media attention.

Animal health attorney Jeffrey Schick, CVPM, ESQ, graduated from the University of Pennsylvania Law School. The son of two veterinary dermatologists, Jeff grew up “in the clinic” and now uses his experience to help veterinarians and animal health manufacturers. When not practicing law, you can find Jeff at the beach with his family and their Rhodesian Ridgeback puppy.