On October 28, 1992, John Otero went into a Wal-Mart store in Las Cruces, New Mexico to interview for a job as a receiving clerk. During that interview, he was asked the question, “What current or past medical problems might limit your ability to do a job?” Unbeknownst to the interviewer, Otero had been injured in an automobile accident a few years before causing his right arm to be amputated below the elbow.
Otero took offense to the question and pointed out his disability, which was not immediately apparent because he wore a prosthetic arm. Ultimately, the interviewer recommended against him getting the job, and someone else was chosen. Otero sued, claiming disability discrimination on the basis of the alleged unlawful inquiry, and was awarded $100,000 in punitive damages. Upon appeal, Wal-Mart challenged the award, but was unsuccessful. See EEOC v. Wal-Mart (1999).
This incidence illustrates the need for great care when interviewing applicants for jobs at your organization. Improper or inadvisable questions can lead to costly lawsuits. In short, you must know what you can’t—and shouldn’t—ask an applicant.
Let’s examine some commonly-asked types of questions:
Prior to tendering a conditional offer of employment, don’t ask about a person’s disabilities (e.g., do you have any medical problems?). However, physical requirements can be assessed (e.g., endurance, height/weight requirements, lifting ability) at any time in the hiring process as long as there is not a medical component to such an assessment (e.g., taking blood pressure after applicant has run an endurance course). The EEOC has provided extensive guidance regarding what it considers unlawful pre-offer inquiries.
Don’t ask whether the applicant is a U.S. citizen… it’s an unlawful inquiry. Nor should you ask how long they have lived here. You can ask if they can provide documentation, if hired, that they are legally authorized to work in the United States.
Even if the interviewee is displaying a religious symbol in the form of jewelry or a tattoo, don’t ask about their religion. You may share the same faith, but you still should not broach the issue. You may want to know what religious holidays they observe for scheduling purposes, but the appropriate approach is to just ask if they can work the required schedule.
Not surprisingly, you can’t ask about age during an interview, except in a very limited number of situations (e.g., a bartender is legally required to be 21). Nor should you ask what year they graduated from school or when they plan to retire. You can ask what long-term goals they have.
“Do you think you can supervise men?” is an inadvisable question. Interviewers should stay away from any statements or questions that imply that a particular gender is preferred to fill the position.
You may have concerns about familial obligations, but tread very carefully here. Don’t ask if they plan to have kids, if they can they get a babysitter if necessary, will they need maternity/paternity leave, if their parents are available for child care, or anything of that nature. Just ask if they can show up for work on time or work overtime on short notice.
No: “Do you drink a lot?” Ok: “Have you ever been disciplined for violating any company policy forbidding the use of alcoholic products in the workplace?”
No: “Do you take any drugs?” Ok: “Do you currently use any illegal drugs?”
No: “How often are you sick?” Ok: “How many days of work did you miss last year?”
Interestingly, in some states and industries it is legal to deny employment if someone is a smoker, but if you wish to ask the applicant a question of that nature, be sure it’s allowed within your state.
If your candidate has a long commute or lives out of state, it’s understandable to be concerned. You may ask if they can make it to work by the designated start time, or for those living far away, if they are willing to relocate.
Your applicant may have served in the military, and it’s ok to ask about their experience with that in general. However, you should not ask about the type of discharge the applicant received. Also, don’t ask if they are in the National Guard or Reserves.
So, as you can see, there are many restrictions. However, if you know what to ask, and how and when to ask it, you will be able to gather valuable information that you can base a sound hiring decision on. If you have any questions or doubts about what you can ask, consult an employment attorney or seasoned HR professional.