Recruiters and employers often have to base hiring decisions on a range of factors. Often, a candidate’s preference for remote working or having a chronic medical condition can impact this hiring decision adversely. Even during the COVID-19 pandemic (or perhaps because of it), recruiters can often be more critical in their approach to acquiring successful long-term hires. Of course, some concerns have a degree of legitimacy. For example, a recruiter can extrapolate that a potential candidate may be distracted by their kids if schools don’t open. Or they might hesitate at hiring someone with a condition like diabetes that puts them in the high-risk segment in case of a COVID-19 infection.
Understanding Employment Discrimination
These may seem like reasonable concerns on the face of it. Whether I’m hiring directly or using the best staffing agency near me, my top priority as a hiring manager is usually to ensure the talent I hire offers long-term utility. During a pandemic, hiring managers may feel justified in being more critical and cautious than usual. Being precautious in the hiring process is good, but recruiters should be extremely mindful of crossing the line when precaution becomes discrimination.
Employment discrimination is not just a civil rights abuse, it is also legal in many countries, including the United States. Several pieces of legislation such as the Civil Rights Act, the Americans With Disability Act, and the Pregnancy Discrimination Act exist to protect American workforces from various types of discrimination. Staying on the right side of workplace discrimination laws is important both during the hiring process as well as when the candidate becomes an active part of the workplace. Not doing so can increase the risk of a discrimination lawsuit, damage to your employer brand, and often a lot of bad press. The modern world has absolutely no tolerance for employers that deny equal employment opportunities and discriminate between candidates or workers. Even one potential lawsuit could shut your business down for good.
Overtly Illegal Interview Questions
Everyone has the right to privacy. Employers in the US are expected to respect the sanctity of this right. In short, interviewers should steer clear of questions that require candidates to reveal private or personal information. Not doing so opens you up to possible hiring discrimination lawsuits, particularly involving any of the following questions:
- Asking candidates about their children and how they will make childcare arrangements during business hours.
- Asking candidates whether they are planning on starting a family in the near future.
- Asking candidates if they were born in the US or are native to the English language.
- Asking candidates about their union membership.
- Inquiring about any chronic health conditions.
- Asking about a candidate’s current age.
- Queries relating to how many sick days a candidate took during their last employment.
- Asking candidates if they have ever filed a compensation lawsuit.
- Questions relating to the number of children a candidate has.
- Asking candidates about their children’s remote learning routines.
- Inquiring about a partner a candidate might have to help with caretaking duties.
- Asking for information on mental health history and treatments for issues.
- Asking women (or trans-women) whether they can manage all-male teams.
- Asking older candidates if they are comfortable with younger teams.
Many of these seem like very innocent and reasonable questions during a candidate interview. But they can often cause a candidate to reveal protected information that can often expose them to stigma or even hiring bias. Even if a candidate willingly reveals such information about themselves, it still should not serve as grounds for bias or discrimination.
Questions That Are Not Directly Biased But May Result in Litigation
Certain questions can seem to be perfectly within the parameters of a professional interview. But in certain contexts, they can often appear discriminatory. Even if the recruiter wasn’t acting on a conscious bias, the following questions can be potentially litigious in certain situations:
Inquiring About The Languages A Candidate Speaks
Employers can often ask an applicant how many languages they can speak or are fluent in. If the question is relevant to the applicant’s role, or the nature of the business, it is perfectly valid. However, if a recruiter only directs these questions at ethnically diverse workers, it raises serious (and possibly legal) concerns.
Asking About A Candidate’s Arrest History
As a rule, an employer cannot enquire about a candidate’s arrest record or history. However, this can vary from state to state. Some states do allow employers the right to ask if a candidate has been convicted of a crime in the past. Even then, a past conviction on its own usually does not offer reasonable (or legally defensible) grounds for disqualification.
Seeking Information On Any Prior Bankruptcy Declarations
Most businesses routinely ask about the financial status of an applicant during an interview. This is a very common question for certain roles, especially those that relate to finance or budgeting. However, in that case, the question must be addressed to allapplicants. If an applicant or applicants can prove the question was directed at them specifically based on bias against their race, religion, disability, gender, or other personal factors, it can quickly become problematic.
Asking About An Applicant’s Current/Recent Salary
Recruiters frequently feel justified in asking about a candidate’s current or last-drawn salary. This offers them an idea of what sort of compensation the applicant would expect from a new employer. However, this often results in a wider wage gap, since most applicants don’t really know how much an employer is willing to offer. This puts employers in a position to make the lowest possible offer that an applicant can accept, even if a fair offer should be much higher. This is one reason why since 2017 New York City prohibits employers from asking about an applicant’s salary history. Instead, it is more appropriate to ask about an applicant’s salary expectations.
