3 Ways to mitigate risk and avoid legal liability during an interview

Interviewing is one of the hardest tasks for companies because we do not have a crystal ball to tell us which candidate to hire, or who will be the most productive in our work environment. Conducting a thoughtful, structured interview can help us narrow down the field of candidates and hopefully set us up for success.  However, even the best planned interview can come with risks. Here are three tips to help avoid legal liability and mitigate risk during the interview process:
  • Avoid unlawful questions. In order to avoid potential claims of discrimination when hiring, it is crucial that you ask only questions that are job-related and important to performing the required duties and responsibilities of the position.
    • For example, if the position requires 50% travel you can ask “This position requires 50% travel; is there any reason you cannot meet that expectation?” instead of “This position requires 50% travel; how will you manage to find childcare for your children?”
    • Employers should avoid small talk that is not related to the position and avoid questions or discussions relating to protected class status such as religion, disability, age, sex, ethnicity or race, such as:
      • I love your accent, where are you from? [national origin]
      • I know someone from your high school, when did you graduate? [age]

  • Be consistent with every candidate. Employers should strive to treat every candidate fairly and consistently to avoid the potential for discrimination.
    • While some candidates answer with only “yes” and “no” responses, and others will give you their life story, it is important to try to stay on point and give every candidate the same courtesy and consideration. You can do that by starting with a list of core questions that you’ll ask of each candidate related to the essential functions of the job (based on an up-to-date job description), and then supplement those questions with information specific to the candidate from their resume. 
    • If a candidate shares too much information (i.e. I’ve recently recovered from a stroke, I’ve been picketing with my brother’s union, etc.), you can use your checklist to get back on track to avoid continuing the discussion regarding those “off limits” topics.
    • Don’t ask questions based on stereotypes. If the question is job-related, ask it to all candidates, not just the ones whom you’ve judged may have an issue, for example:

      • Don’t Ask: “This job requires heavy lifting – you can’t do that can you?” asked only to the female candidate for the warehouse position, not the male [sex]
      • Instead Ask: “This job requires lifting 25 lbs. on a regular basis. Can you meet that expectation?” asked to all candidates.
      • Don’t Ask: “Will you be able to work weekends” asked only to the candidate who mentions he is Jewish. [religion]
      • Instead Ask: “This position occasionally works overtime on the weekends. Will you be able to work overtime as needed?” asked of all candidates.

  • Avoid making promises regarding job security or promotions. While it is often a selling point for companies to highlight their organizational development opportunities and the stability of the company, you want to avoid making statements that can be construed as promises or “contracts” of employment. 

It is important for any company representative participating in the interview process to be trained to avoid any of these potential pitfalls. Our Labor & Employment practice group at Mansour Gavin LPA can help provide proper training so that your company can avoid liability and mitigate risk during the interview and hiring process.

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