According to the Society for Human Resource Management, the guiding principle behind every question you ask a job candidate should be, can you demonstrate a job-related necessity for asking the question? If the answer is yes, then by all means, ask the question. However, if you cannot find a job-relevant reason for asking a question, do not ask it. Period. Of course, if you have set interviewing practices in place, you may find it difficult to change your ways even if existing questions have no bearing on an applicant’s qualifications, skill levels, or overall competence. Moreover, you may not even realize that some of the questions you ask are illegal. If this is the case, it may be time to review your pre-employment questionnaire and determine what questions, if any, can land you in hot water. The Alabama business litigation attorneys at Cloud Willis & Ellis can help you review your hiring practices, identify problem areas, and modify them to be more in line with current laws.
Your Guide to Pre-Employment Inquiries
Generally speaking, state and federal equal opportunity regulations disallow the use of pre-employment interview questions that have no business purpose and that unduly screen out candidates based on their protected status. Both the Equal Employment Opportunity Commission and Alabama regulatory agencies take the position that pre-employment interview questions should serve one purpose, and that is to determine one’s qualifications without regard to criteria based on non-job-related factors. Though the nature of some questions makes them obviously illegal, the EEOC developed guidelines to help employers avoid discrimination in hiring practices. The guidelines stipulate that questions related to the following are iffy at best and illegal at worst:
Race, Gender, Religion, or National Origin
Under most circumstances, pre-employment questions related to candidates’ race should be deemed off-limits. If you ask race-related questions, candidates may claim that you did so to serve as a basis for making hiring decisions. Upon receiving a claim, the EEOC or state regulatory agency will conduct an investigation to see if one or more particular racial groups were excluded from moving forward in the hiring process. Depending on what the agency discovers, your racial inquiries may serve as a basis for a discrimination suit.
The same would hold true for questions regarding a person’s gender, national origin, or religion.
Per the EEOC, basing hiring decisions solely on a person’s military discharge status is illegal per Title VII because discharge status has been found to mainly adversely affect African-Americans. Moreover, a person’s discharge status does not reveal a person’s skill levels, qualifications, or competencies. That said, while questions regarding a person’s military discharge status are not illegal in and of themselves, they are ill-advised and can lead to disparate impact claims.
Arrest and Conviction Records
Some states bar employers from asking candidates about their criminal records at all, but Alabama is not one of them. That said, you should still refrain from asking about a person’s criminal history as doing so could be construed as an attempt to bar employment based on a person’s race. You should only use inquiries based on arrest and conviction records if there is a business need to do so. For instance, if you are in the business of transporting large amounts of money to and from bank vaults, you may be within your rights to ask about a person’s arrest for bank robbery. However, if you are in the business of serving food, you would not be.
Are Your Hiring Practices Illegal?
If you suspect that your hiring practices and pre-employment questions are illegal, or if you are not quite sure, contact the Alabama business litigation attorneys at Cloud Willis & Ellis today. Our lawyers can help you review your hiring practices, identify problem areas, and help you revise them so they are compliant with current laws. Contact our firm today to get started.