Job Interviews and the Discrimination Minefield

Job Interviews and the Discrimination Minefield

Conducting a job interview 50 years ago was fairly easy and straightforward. You could bring a candidate in, have a casual conversation, and determine within a short amount of time whether or not said candidate is a good fit. Things are not so easy today. Modern job interviews are a lot like minefields thanks to new laws pertaining to discrimination.

Simply put, a lot of the questions you could ask 50 years ago are now off-limits. Virtually any question that even hints at the possibility of discrimination is not allowed. This applies even to questions that are asked innocently and with no intent to discriminate. If a job candidate believes questions are discriminatory, he or she can file a complaint with the Equal Employment Opportunity Commission (EEOC)

Things You Cannot Ask

What makes today’s job interview such a discrimination minefield is that the law isn’t always clear about things you cannot ask. There are some black-and-white questions, but most potentially offending questions are really left to the perception of the job candidate. Let’s look at a few examples.

You can ask a candidate straight up what shifts he or she is available to work. It is advised that you do not ask a generic question like, “can you work weekends?” Such an ambiguous and open-ended question could be perceived as a litmus test to determine a candidate’s religious practices. It could be construed as potential religious discrimination.

Surprisingly, you cannot ask questions pertaining to arrests or convictions for crimes that do not directly pertain to the position a candidate is hiring for. Some states make it illegal to ask any arrest or conviction questions at all.

One last example is asking questions about disabilities. If you believe a candidate may not be able to perform adequately for the job at hand, the best you can do is describe the position in detail and then asked the candidate if he or she can perform all the functions thereof. You don’t ever want to ask outright if a candidate has a disability. You do not want to ask if he or she has ever filed a worker’s compensation claim or suffered the injury as a result of a perceived disability.

When a Complaint Is Filed

Be aware that you could do everything right in an interview and still be subject to an EEOC complaint. According to BenefitMall, a Dallas payroll and benefits company, EEOC complaints require very little on the complainant’s part to get things started. What do you do if you are the subject of an EEOC complaint?

The first thing is to follow the instructions found in the EEOC notification. Those instructions include logging on to the EEOC’s Respondent Portal to view the complaint and read any messages already posted by investigators. Logging on may reveal that the agency wishes to resolve the complaint through mediation rather than a formal investigation and potential litigation.

Should the EEOC decide to investigate, you will have every opportunity to gather evidence in your own defense. You might be asked to submit a position statement and schedule an onsite visit from the EEOC. You might be required to respond to a formal request for information, including providing contact information pertaining to other employees who may serve as witnesses.

Note that the EEOC is required to follow a very specific process to protect the employer’s rights as much as the complainant’s. Just follow the process through to its conclusion and see what happens. All you can do is cooperate to the best of your ability and leave the rest to the EEOC.