How to Avoid Asking Illegal Interview Questions

Sure, it’s the middle of summer right now, but depending on your industry, you might have a significant piece of your work force heading back to school in another month. That means you’ll have one or more job openings you need to fill, so you begin the hiring process. Sounds simple enough, right? Think again! Every time you open the door to a job candidate, you could also be opening the door to a legal pitfall. And, most of the time it has to do with the interview questions you innocently ask.

Most people hit by lawsuits never even see them coming. Are you 100% sure your interviewing and hiring practices are legally sound? Ignorance of the law isn’t an excuse that will hold up in court. You MUST take responsibility for knowing what is and isn’t legally acceptable when you’re interviewing and hiring.

Job applicants are savvier about what you can and cannot ask during an interview. Plus, when there aren’t 300 applicants for each position, walking away from a potential job isn’t quite as big of a deal as it was just a couple of years ago when unemployment was double-digits.

Interview Questions That You Can’t Ask:

1. “Have you ever been treated for any of the following diseases?” [Trailed by a checklist of various conditions or diseases]
2. “Were you ever hospitalized?”
3. “Have you ever been treated for any medical condition?”
4. “Is there any health-related reason you may not be able to perform the job for which you are applying?”
5. “Have you had any major illness, accident, or injury in the past X years?”
6. “How many days were you absent from work because of illness last year?”
7. “Do you have any disabilities or impairments that may affect your performance in the position for which you are applying?”
8. “Are you taking any prescription medication?”
9. “Were you ever treated for drug addiction or alcoholism?” (Employers may require that employees not use or be under the influence of alcohol or illegal drugs, or not abuse legal drugs at the workplace).
10. “Have you ever filed for workers’ compensation insurance?”

Interview Questions That You Can and Should Ask:

1. “Are you able to perform the tasks of this job with or without an accommodation?” You should either give the applicant a copy of a job description or describe the job functions, indicating which job functions are essential to the position. Focus on the end product or results. Don’t focus on the way the job is done now or was done in the past. Discuss the quality, quantity, and timeliness of the work you will expect.
2. “How would you perform the tasks and with what accommodation(s)?”  This question should only be asked if an applicant indicates he or she is able to perform the tasks with an accommodation.
3. “These are our attendance requirements. Will you be able to meet them?”

Best Practice:

Don’t discuss the progress of an illness, accident, or injury with an applicant—even if the applicant raises the topic. Don’t commit to a reasonable accommodation on the spot. Tell the applicant you’ll get back to him or her with your decision.