Introduction
During a recent meeting with business owners, we discovered that many were unaware that some basic interview questions could potentially lead to legal trouble. While these questions were job-related, they were often phrased poorly, increasing the risk of discrimination claims. The interview process is a crucial part of hiring the right candidate for your company. However, it is essential to be aware of the legal implications of asking certain questions during interviews. Loaded questions can potentially lead to discrimination claims and legal consequences. In this blog, we will explore the importance of avoiding loaded questions and provide guidance on how to ensure compliance with employment laws, based on our experiences with business owners who were unintentionally putting their organizations at risk.
What are Loaded Questions?
Loaded questions are those that contain an assumption or are framed in a way that may lead to biased or discriminatory answers. These questions can inadvertently cause employers to discriminate against candidates based on their age, race, gender, religion, national origin, or disability status.
Guidelines for Avoiding Loaded Questions
Familiarize yourself with federal and state laws: It is crucial to be aware of the legal implications of your interview questions. The U.S. Equal Employment Opportunity Commission (EEOC)[1] provides guidance on what questions employers should avoid during interviews. Additionally, state laws, such as those in Iowa[2], may have further restrictions on interview questions.
Focus on job-related questions: Ensure that all questions you ask during an interview pertain to the candidate’s skills, experience, and qualifications for the position. Avoid personal inquiries that may lead to discrimination.
Use open-ended questions: Instead of asking questions that can be answered with a simple “yes” or “no,” use open-ended questions to encourage candidates to provide more information about their qualifications and experiences.
Examples of Loaded Questions and Their Alternatives
Example 1:
Loaded question: “Do you have a car to drive to work?”
Alternative: “Do you have reliable transportation to get to and from work?”
Example 2:
Loaded question: “Do you have any children?”
Alternative: “Are you able to meet the work schedule and attendance requirements for this position?”
Example 3:
Loaded question: “What country are you from?”
Alternative: “Are you legally authorized to work in the United States?”
Example 4:
Loaded question: “What is your maiden name?”
Alternative: “Have you ever worked under a different name that we should be aware of for verifying your work history?”
Example 5:
Loaded question: “What year did you graduate from high school?”
Alternative: “What level of education have you completed?”
Example 6:
Loaded question: “Have you ever been arrested or convicted of a crime?”
Alternative: “Have you ever been convicted of a crime that is directly related to the responsibilities of this position?”
Legal Cases and Settlements
In November 2012, Alliant Techsystems Inc. settled an EEOC lawsuit, paying $100,000 for allegedly violating Title VII of the Civil Rights Act of 1964. The company was accused of refusing to hire an African-American woman for a technical support position at its offices in Edina, Minnesota, due to her race[3]. The applicant was interviewed multiple times, and during the process, she was advised to remove her braids to appear more professional. Although she complied and was informed that she would be hired, she was ultimately denied the position after putting her braids back in. Instead, a white male was hired for the IT job. The consent decree, applicable to the company’s headquarters in Minnesota and Virginia, enjoined Alliant from further race-based discrimination in hiring and retaliation against individuals who oppose unlawful practices under Title VII[3]. The company also agreed to review its workplace policies to ensure compliance with Title VII and train its entire staff on anti-discrimination laws.
In March 2016, a manufacturing company based in New Ulm, Minnesota, Windings Inc., paid $19,500 to settle a race discrimination lawsuit filed by the EEOC. The agency alleged that Windings Inc. violated Title VII when it refused to hire a biracial (African-American and White) applicant for a vacant assembler position and hired a White applicant instead[3]. The applicant was qualified for the job, having passed job-related assessment tests and having prior experience as an assembler. In addition to the monetary relief, the two-year consent decree required Windings to implement hiring procedures to provide equal employment opportunities for all applicants, including posting vacancy announcements on its website and not solely relying on word-of-mouth recruitment or employee referrals[3]. Windings also agreed to use objective hiring standards, structured interview guidelines, document interviews, adopt a written affirmative action plan, and seek applications from qualified minority applicants, including African-Americans. Furthermore, Windings committed to participating in job fairs and recruiting events targeting Black Americans and providing EEOC with reports of its applicants, hiring, and specific reasons for non-selection during the decree’s term.
These cases highlight the importance of adhering to best practices and employment laws during the interview and hiring process to avoid legal consequences and foster a fair and inclusive work environment.
Advice from Government Agencies and Professional Organizations
Both the EEOC[1] and the Society for Human Resource Management (SHRM)[4] provide guidance on avoiding loaded questions during interviews. The EEOC’s “Prohibited Employment Policies/Practices” webpage offers information on questions to avoid, while SHRM’s “Interview Do’s and Don’ts” provides practical tips for employers.
To ensure compliance with employment laws, consider the following recommendations from these agencies:
Develop standardized interview questions that focus on the applicant’s skills, experience, and job-related qualifications. This will help avoid potential biases and ensure that all candidates are evaluated on the same criteria.
Train your interviewers on anti-discrimination laws and the importance of avoiding loaded questions. This includes discussing the potential consequences of non-compliance, such as legal liability and damage to the company’s reputation.
Regularly review and update your interview processes to ensure that they remain compliant with current laws and regulations. Stay informed about changes in employment laws at both the federal and state level.
Seek guidance from professional organizations like SHRM and consult with legal counsel to review your company’s hiring policies and procedures.
Conclusion
By avoiding loaded questions during interviews and adhering to employment laws, you can create a fair and unbiased interview process that attracts and retains top talent for your organization. Familiarize yourself with federal and state laws, focus on job-related questions, and use open-ended inquiries to maintain a compliant and effective interview process. In addition, take advantage of resources provided by government agencies and professional organizations to stay informed about best practices and legal updates. By doing so, you not only protect your company from potential legal issues but also contribute to building a diverse and inclusive workplace.
Sources:
[1] U.S. Equal Employment Opportunity Commission. (n.d.). Prohibited Employment Policies/Practices. Retrieved from https://www.eeoc.gov/prohibited-employment-policiespractices
[2] Iowa Civil Rights Commission. (n.d.). Pre-Employment Inquiries. Retrieved from https://icrc.iowa.gov/your-rightshttps://icrc.iowa.gov/your-rights/iowa-civil-rights-act/iowa-civil-rights-act
[3] U.S. Equal Employment Opportunity Commission. (n.d.). Significant EEOC Race/Color Cases(Covering Private and Federal Sectors). Retrieved from https://www.eeoc.gov/initiatives/e-race/significant-eeoc-racecolor-casescovering-private-and-federal-sectors#hiring
[4] Society for Human Resource Management. (n.d.). Interview Do’s and Don’ts. Retrieved from https://www.shrm.org/ResourcesAndTools/tools-and-samples/toolkits/Pages/interview-employment-application-questions.aspx