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Hire the Right Person – And Stay Out of Trouble Doing It

Interviewing job candidates has never been easy. But now, a growing list of legal pitfalls is making a tough job even tougher.

Fortunately, there are techniques that can help you hire the right person and stay out of trouble while you’re doing it. Here are some of the most important:

When Can a Charge of Discrimination Be Filed?

   In most areas, a charge must be filed with the Equal Employment Opportunity Commission within 300 days from the date of the alleged discrimination. In a small number of areas where a state or local employment discrimination law does not apply, a charge must be filed within 180 days.

– Source: The EEOC

    • Talk less, listen more. Most interviewers talk too much. They spend too much time discussing the job and the company and not enough time asking relevant questions. Your goal during an interview is to obtain as much meaningful information from the applicant as possible.
    • Examine resumes and applications carefully. While complete honesty on a job application may not be the norm today, you should question the obvious. An applicant with 10 year’s experience and 10 jobs may be a “job-hopper” at best and a problem employee at worst.
    • Stay on track. Ask only job-related questions that you need to make a lawful hiring decision. Interviews can easily turn into conversations about family, religion, or national origin. If you start going in this direction, stop and move the conversation onto a proper, legal topic.”
    • Prepare a written list of questions. To stay clear of discrimination laws, don’t ask different questions of male and female applicants. Create a list of questions for all candidates before interviews start. Make copies of those questions with space between them to take notes.
    • Consider compatibility. Will the candidate fit with the boss? A candidate who likes to work independently, for example, won’t work well with an micro-manager. Look for compatibility in the overall work environment. A person who thrives on competition among co-workers may not fit in a team-based culture that values partnership.
    • Interview some candidates more than once. This is especially important when hiring supervisors. Applicants for these jobs usually expect to be interviewed more than once. A second interview gives applicants and interviewers every opportunity to test compatibility.


What Not to Ask

   Know what questions can lead to litigation. Interviewers must not ask about so-called protected classes, including race, sex, age, national origin, religion, or disabilities.
Some questions seem harmless, but could land you in trouble. For example, asking an applicant what year he graduated from high school could lead to an age discrimination claim. The applicant could allege that you used the information to figure out his age. A better question is, simply, “Did you graduate from high school?”
    Here are more questions that you should NOT ask during an interview: 

  • Are you planning to have a family?
  • Do you have children?
  • Have you ever been injured on the job?
  • Have you ever been arrested?
  • What year were you born?
  • Do you have a disability?

In general, don’t ask questions unless you can lawfully base a hiring decision on the answer.

    • Look behind the answers. Even after asking the right questions, some interviewers make wrong choices because they don’t listen carefully to the answers. Don’t fall into the trap of thinking you can overcome potential conflicts just because you like them or because their skills are a good match for the job.
    • As they say in court, “don’t lead the witness.” You shouldn’t give away too many details of what you’re looking for in a candidate. Otherwise, candidates tend to mold their answers to what you want to hear.
    • Don’t focus exclusively on hard skills. Some interviewers discuss only the candidate’s technical skills. Although these are important, they’re not always the best indicator of success on the job. The candidate must also be a good fit for the boss and the work environment. Two candidates can be equally qualified in technical skills, but vastly different in terms of personality and work-style preferences.
    • Avoid statements that imply a promise of permanent employment. An employer’s legal vulnerability in a wrongful discharge suit begins in the early stages of a relationship. Courts sometimes find a contractual relationship in statements about job security or advancement opportunities.
  • Make sure pre-employment tests measure only relevant skills. A 1971 Supreme Court decision, Griggs v. Duke Power, provided a major precedent in pre-employment testing. In that case, an applicant for a janitorial job was required to show a high school diploma. When the company did not hire him, the applicant sued. The Supreme Court ruled that a high school diploma was irrelevant to the position in question. The court also ruled that pre-employment testing must measure only skills directly related to performance on the job the candidate is seeking.

Never take pre-employment interviewing lightly. It is, perhaps, the most critical part of the employment process. The information you obtain from the candidates will become the most important factor in your decision.

For additional assistance or EEOC guidance, visit the EEOC website

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