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May 8, 2007 > Watercooler Counsel

Watercooler Counsel

By Rich Proulx & Malinda Tuazon

Questionable Questions, Part I
Because Inquiring Minds Want to Ask...

We get so many questions about job interview and application queries, we are writing a series of columns on the fine art of asking and answering these occasions. Here is our first installment...


Q: When I interview job applicants, I want to know their history. Have they been fired before? Do they have a drinking problem? Have they ever used drugs or been arrested? My office manager suggested that I may be violating some laws when I do this. I believe I should be able to ask these questions to avoid potential lawsuits for negligent hiring. Who's right?

-- Need-to-know Boss, Hlayward


A: Some interview questions can help you identify your best candidate, while other questions may suggest discriminatory motives ('Why else would you want to know that?') or even flat out violate the law. Clearly you want your questions to belong to the first category and not the second one! Let's take a closer look at specific examples from your application form.

"Have you ever been fired?"

You can ask that question, no problem.

"Have you ever utilized sick leave over 5 consecutive days, and why?"

You can ask questions designed to detect whether an applicant ever has abused leave, but asking about an applicant's legitimate use of sick leave (likely to elicit information about a disability) is a no-no under the Americans with Disabilities Act.

"Have you ever used drugs?"

You can ask applicants about their current illegal use of drugs, but may not ask about their lawful drug use. If you do not distinguish between illegal and legal drug use, you may cause applicants to disclose their lawful use of prescription drugs. Also, because past addiction to illegal drugs or controlled substances is a covered disability under the ADA, an employer may not ask whether an applicant ever has been addicted to drugs or been treated for drug addiction. Similarly, an employer may ask whether an applicant drinks alcohol but may not ask how much alcohol an applicant drinks or whether he or she has a "drinking problem."

"Have you ever been arrested or the subject of an internal investigation?"

Because arrests and investigations alone are not reliable evidence that a person actually has committed a crime (innocent until proven guilty, right?), it would be pretty hard to justify broad general inquiries about an applicant's history of arrest or internal company investigation.

Let's close with some best practices tips for interviewing from the Small Business Association:

_ Use your list of standard questions during each interview so that you treat the
applicants equally and so you can compare apples to apples.
_ Refer to the criteria for analyzing candidates. Ask questions in regards to the job criteria.
_ Keep all questions job-related.
_ Do not ask discriminating questions.
_ Show a genuine interest in every candidate you interview.
_ If possible, have at least one other person meet and/or interview candidates who are
finalists. They should also rate the candidates on each of the criteria; ultimately, all interviewers should compare their ratings and discuss any discrepancies. Having more than one interviewer helps control personal biases.

Send your questions to Watercooler.Counsel@eeoc.gov. Rich is a former Supervisory Investigator and Malinda is a current Federal Investigator for the Equal Employment Opportunity Commission www.eeoc.gov. Social psychologist Albert Mehrabian found that 55 percent of a first impression is based on appearance (e.g., dress, grooming, body language), 38 percent on the way we sound (e.g., the tone and pitch of our voice, accent) and just 7 percent on what we have to say. Identifying information in the questions may be fictional.



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