Construction companies are gearing up to hire seasonal employees for the busy season. And with the current labor shortage, an estimated 546,000 additional workers will need to be hired on top of the normal pace of hiring in 2023 to meet the demand for labor. So companies must ensure their interview process is fast, efficient but also compliant. Yet beware, there is such a thing as bad job interview questions or questions that could land your company in hot water.
The US Equal Employment Opportunity Commission (EEOC) enforces several laws that prevent discrimination on the basis of color, race, religion, national origin, sex, disabilities or genetic information. The EEOC investigates complaints and if it finds discrimination occurred, companies can face fines, civil actions and more. A violation can easily occur during the interview process by asking questions that could trigger discrimination. Knowing which questions you can’t ask can protect your company from an EEOC violation.
Examples of Bad Job Interview Questions
Interviews are your first opportunity to get to know a potential future employee. And it can be hard to understand the difference between being conversational and crossing the line into being discriminatory. It’s important during the stage of the interview process to only ask questions that align with the job description including the essential functions of the job that the candidate must perform.
Below are some examples of bad job interview questions.
“How old are you?” “When did you graduate from high school?”
A person’s age can’t be a factor when applying for a job, according to The Age Discrimination Employment Act of 1967. The act initially protected workers over 40 from discrimination. It also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination or participated in an employment discrimination investigation or lawsuit.
“What country are you originally from?”
It is not ok to ask about a candidate’s national origin, as outlined in Title VII of the Civil Rights Act of 1964. Questions that ask about what country a candidate might be from could lead to discrimination, especially if the interviewer has preconceived notions about certain countries.
“What’s your racial make-up?”
Race discrimination is also protected under Title VII of the Civil Rights Act of 1964. Interview questions should not ask about a candidate’s race, which could potentially lead to not hiring a candidate based on their race or color.
“Are you a legal citizen of the United States?”
Most employers should not ask whether or not a job applicant is a United States citizen before making an offer of employment, according to the EEOC. But it is important to note that once a conditional offer of employment has been met or an invitation to interview has been extended, employers can then verify the identity and employment eligibility of employees via the Employment Eligibility Verification (I-9) Form and E-Verify.
“Are you in good health?” Or “Do you often miss work?”
Interviewers can’t ask questions about a candidate’s health, both physical and mental, under Title I and V of the Americans with Disabilities Act of 1990. Questions that can lead to discriminatory behavior include asking about a candidate’s leave history and if he or she has any major illnesses. Similarly with citizenship verification, once a conditional offer of employment has been met, an employer can ask a candidate if they can perform essential functions of the job, like lifting a certain amount of weight, standing for so many hours and so on. Employers also have some leeway at this point in the recruitment process to ask about possible attendance issues if consistent attendance is an essential function of the job.
“What gender do you identify as?” “Do you have a girlfriend?” “Are you married?” “Do you have a family?”
All of the above questions inquire as to an applicant’s sex, which are not job-related and problematic under Title VII. An interviewer should not ask about sexual orientation, gender identity, pregnancy, martial status, medical history of pregnancy, future child bearing plans, number and/or ages of children or dependents, provisions for child care, abortions, birth control, ability to reproduce and name or address of spouse or children. Questions dealing with sex could imply limitations or special treatment.
“What church do you attend?”
Questions about an applicant’s religious affiliation or beliefs (unless the religion is a bona fide occupational qualification), are generally viewed as non job-related and problematic under federal law. The only exceptions to asking about a candidate’s religion are for religious corporations, associations, educational institutions or societies. But the EEOC makes it clear it does not exempt these organizations from discriminating against race, gender, national origin, disability, color, and/or age.
“What’s your family’s medical history?”
The Genetic Information Nondiscrimination Act of 2008 prohibits discrimination against a person’s genetic information with respect to health insurance and employment. According to the EEOC, genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder or condition of an individual’s family members.
“Do you use tobacco products?”
The lawful consumption of alcohol and tobacco products, outside of work, should not be asked in an interview, even if your company has a strict no-smoking policy. Lawful consumption of these products is private and does not directly affect job performance.
Asking bad job interview questions, like the ones above, could lead to candidates filing a charge of discrimination against your company. Not only can these charges lead to penalties and civil suits, but they can seriously tarnish your company’s brand; candidates won’t apply at a company known for discriminating against applicants.
If you’re not sure if what you’re asking applicants could be discriminatory, talk to an expert, like Arcoro’s partner myHRcounsel. Expert advice just might save your company from a potential lawsuit.