Conducting Legal Interviews

Poorly or improperly conducted job interviews may cause legal problems. Prior to stepping into any interview, be prepared!

During the job interview it is unlawful to ask questions that directly or indirectly seek to provide information about certain factors. The Human Rights Law prohibits employers from asking a candidate questions, directly or indirectly, about a candidate’s age, race, creed, color, national origin, sex, disability, genetic predisposition or carrier status, marital status or arrest record (unless based upon a bona fide occupational qualification). Below are some “do’s” and “don’ts” that may be helpful!

It is permissible to ask the candidate if he or she is legally eligible to work in the United States. Note: The EEOC Guidelines on Discrimination because of National Origin indicate that consideration of an applicant’s citizenship may constitute evidence of discrimination on the basis of national origin. The EEOC provides that, where consideration of citizenship has the purpose or effect of discriminating against persons of a particular nationality, a person who is a lawfully immigrated alien, legally eligible to work, may not be discriminated against on the basis of his or her citizenship.

It is not permissible to inquire as to the marital status, pregnancy, future child bearing plans, ability to reproduce, advocacy of any form of birth control or family planning, and number and age of children. (Information needed for health insurance and other purposes may be obtained if and when candidate is employed.) Title VII of the Civil Rights Act of 1964, as amended, makes it unlawful to ask candidates about child care arrangements.

It is permissible to state the requirements of the job in terms of work schedule, such as the days of the week, workday and overtime, and ask the candidate whether he or she is able to meet such requirements. The EEOC cautions against asking questions regarding a candidate’s availability to work on Friday evenings, Saturdays or holidays. Note: Title VII of the Civil Rights Act of 1964, as amended, and the Human Rights Law require employers and unions to accommodate the religious beliefs of employees and applicants, unless the accommodation would create an undue hardship.

The Americans with Disabilities Act prohibits employers from conducting medical examinations before an offer of employment has been made. Once a conditional offer of employment has been made, you can require an examination, provided all candidates offered employment in this job title are required to undergo a medical exam. Note: For further information regarding permissible and impermissible disability-related inquiries and medical examinations see EEOC Enforcement Guidance: Pre-employment Disability-Related Inquiries and Medical Examination under the Americans with Disabilities Act of 1990.

Not Permissible
• The EEOC has found that, unless justified by business necessity, it is unlawful to reject candidates based on poor credit ratings because this has a disparate impact on minority groups.
• Similarly, unless justified by business necessity, do not inquire into a candidate’s financial status, such as bankruptcy, car ownership, rental or ownership of a house, length of residence at an address, or past garnishment of wages, for the purpose of making employment decisions, as this may violate Title VII of the Civil Rights Act of 1964, and as amended. However, it is permissible to inquire as to a candidate’s credit or garnishment record, if bonding is a job requirement.

Before stepping into that interview, be prepared. Develop a list of interview questions that focus on the qualifications for the job - avoid personal questions.