January 04, 2010

Written by: Robert Doren, ESQ.

12 Questions to Avoid During the Hiring Process

Federal and state equal employment opportunity laws prohibit prospective employers from asking certain questions during the hiring process. Asking such questions can lead to potential liability for discriminatory hiring and costly lawsuits. Below are twelve key questions to avoid during the hiring process.

1. Have you ever been arrested?

In New York it is unlawful for an employer to inquire about or discriminate based on an applicant’s arrest record. An employer may lawfully ask an applicant if he or she has previously been convicted. However, an employer may only deny employment based on a criminal conviction if it can demonstrate (1) direct relationship between the crime and the job or (2) that hiring the person would create an unreasonable risk to the property or safety of others.

2. List all clubs, societies and organizations to which you belong.

Although this inquiry is commonly made by employers to reveal an applicant’s character, it should be avoided because the response may indirectly reveal an applicant’s membership in a protected class. However, inquiries regarding professional associations or memberships are acceptable if they are job-related.

3. When did you graduate?

Although information about an applicant’s academic background may be relevant, employers should not ask for dates of attendance or graduation, because the response may reveal an applicant’s age. Both federal and state law prohibit employers from discriminating on the basis of an individual’s age, including refusal to hire an applicant because of his/her age.

4. How would you feel about working for someone younger than you?

This question may be tempting when filling a position in a department run by a relatively young employee. However, because the question indirectly addresses the applicant’s age, it is impermissible.

5. Do you rent or own your home?

This is rarely, if ever, relevant to the job in question, and questions such as this tend to have a disparate impact on minorities. Therefore, the best bet is to avoid the topic of home ownership altogether.

6. I see you worked at ABC Corporation…they are unionized, aren’t they?

This is too close to asking, “have you ever been a member of a union?” and federal law makes it illegal to discriminate on the basis of union membership.

7. I see from your resume that you speak a number of languages. How did you learn to speak so many languages?

This inquiry may invites the employee to reveal his or her national origin and since it is illegal under federal and state law to discriminate based on national origin, this type of question should be avoided.

8. Will you need a reasonable accommodation in this job? Can you perform the essential functions of this job with or without reasonable accommodation? Have you ever been on Workers' Compensation?

Federal and state law prohibit an employer from asking disability-related questions prior to making a conditional offer of employment. While an employer may ask an applicant if he or she can perform specific job functions, it may only ask an applicant about the need for accommodations during the pre-offer stage if he or she has an obvious disability or voluntarily discloses a disability during the interview.

9. Do you use Miss? Mrs.? or Ms.? Are you married? Single? Divorced? Separated?

New York prohibits all pre-employment inquiries into an applicant’s marital status. Such questions may also violate federal law if such information is used to deny or limit employment for women. If this information is needed for business purposes it can be lawfully obtained after hiring.

10. Do you have a boyfriend? Or, do you have a girlfriend?

State law prohibits discrimination based on sexual orientation, therefore, this question should be avoided.

11. You don’t do any crazy stuff like hang gliding, dirt biking, snowboarding or bungee jumping do you?

New York prohibits an employer from refusing to hire someone because of their outside recreational activities, if those activities are: (1) pursued off the employer’s premises; (2) fall outside work hours; (3)pursued without the employer’s equipment; and (4) lawful. This is not to say that employers are prohibited from asking candidates what they do for fun or what their interests are. But employers should be wary about reacting negatively to the candidate's lawful recreational activities and cannot base a refusal to hire on such activity.

12. Do you smoke?

State law also prohibits discrimination against applicants who use certain “consumable products.” For consumption to be covered by the law, it must be a lawful product, enjoyed outside work hours, off the employer’s premises and not involve the employer’s equipment or property. Smoking cigarettes, cigars or pipes is clearly covered by the statute and as a result employers should avoid asking applicants about such habits.

Robert Doren

Mr. Doren is the Managing Attorney of the firm's Buffalo Office. His practice covers the full range of labor and employment services on behalf of management. Mr. Doren concentrates his activities in the area of employment litigation (discrimination, wage and hour, breach of contract, class actions, etc.) in state and federal courts and before the state and federal agencies (EEOC and NYSDHR). His services include counseling and assistance in administration of personnel labor relations, both union and non-union, including union avoidance counseling, collective bargaining and representation of employers before the NLRB and in labor arbitrations. Mr. Doren has particular experience in compliance with state and federal prevailing rate regulations concerning employee compensation on public construction projects, as well as safety regulations under OSHA