Because Inquiring Minds Want to Ask

Q: When I interview job applicants I want to know, have they been fired before? Do they have a drinking problem? Have they ever used drugs or been arrested? My office manager suggested that I may be violating some laws when I do this. I believe I should be able to ask these questions to avoid potential lawsuits for negligent hiring. Who’s right?

– Need-to-know Boss

  Reno, NV

A:  Some interview questions can help you identify your best candidate, while other questions may suggest discriminatory motives (“Why else would you want to know that?”) or even flat out violate the law. Clearly you want your questions to belong to the first category and not the second one! Let’s take a closer look at specific examples from your application form.

“Have you ever utilized sick leave over 5 consecutive days, and why?”

You can ask questions designed to detect whether an applicant ever has abused leave, but asking about an applicant’s legitimate use of sick leave (likely to elicit information about a disability) is a no-no under the Americans with Disabilities Act. 

“Have you ever used drugs?”

You can ask applicants about their current illegal use of drugs but may not ask about their lawful drug use. If you do not distinguish between illegal and legal drug use, you may cause applicants to disclose their lawful use of prescription drugs. Also, because past addiction to illegal drugs or controlled substances is a covered disability under the ADA, an employer may not ask whether an applicant ever has been addicted to drugs or been treated for drug addiction. Similarly, an employer may ask whether an applicant drinks alcohol but may not ask how much alcohol an applicant drinks or whether he or she has a “drinking problem.” 

“Have you ever been arrested or the subject of an internal investigation?”

Because arrests and investigations alone are not reliable evidence that a person actually has committed a crime (innocent until proven guilty, right?), it would be pretty hard to justify broad general inquiries about an applicant’s history of arrest or internal company investigation. 

When conducting interviews, here are some tips to avoid landing in hot water:

  • Use your list of standard questions during each interview so that you treat the applicants equally and so you can compare apples to apples. 

  • Refer to the criteria for analyzing candidates. Ask questions in regards to the job criteria. 

  • Keep all questions job-related. 

  • Do not ask discriminating questions. 

  • Show a genuine interest in every candidate you interview. 

  • If possible, have at least one other person interview candidates who are finalists. They should also rate the candidates on each of the criteria. Ultimately, all interviewers should compare their ratings and discuss any discrepancies. Having more than one interviewer helps control personal biases. 

According to Legal Jobs, on average 118 people apply for a single job and only 20% are interviewed.

(This article was originally published in the column Watercooler Counsel with Malinda Tuazon as a co-author. It has been included here with minor updates.) 

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