Questions You Can't Ask When Hiring

This article is a reprint of Wise Bread's contribution to OPEN Forum from American Express -- where small business owners can get advice from experts and share tips with each other.

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Legally speaking, you can ask just about anything at a job interview. But there are plenty of questions that you should never actually ask, because they'll quickly come back to haunt you. If you ask a question that could be interpreted as discriminatory and then choose not to hire the interviewee, it can be very easy for that interviewee to say that he or she didn't get the job due to discrimination.

Here is just a handful of the many questions that can get you into hot water:

• Are you planning on having children?
• Have you ever been arrested?
• What religion do you practice?
• Have you ever declared bankruptcy or had your wages garnished?
• Do you have any handicaps?
• What ethnic background do you come from?
• Are you pregnant?

A Question of Discrimination

Off-limits questions boil down to any that could lead to accusations of discrimination down the road. Roberta Matuson, the president of Human Resource Solutions, has seen the trouble a well-intentioned small business owner can get into.

During the interviewing process you cannot ask anything that is related to marital status, race, religion, sexual orientation or anything else that might be perceived as discriminatory. Common mistakes small business owners make when hiring include asking people (generally women) about their plans for a future family or how they will care for their children while at work. Or they will ask questions such as, 'Where did you learn to speak Spanish?' which can cause the candidate to reveal their origin.

Matuson points out that some questions can even be double-whammies:

'What does your husband do?' This answer to this question reveals both sexual orientation and marital status.

It may seem difficult to ask an interviewee about what he or she wants in the future, based on the long list of questions that are essentially off-limits. That doesn't mean that you can't get a good idea of what you can expect with a prospective employee. Matuson suggests:

The best predictor of future behavior is past behavior. Look at the person's track record. Ask them to explain why they left each position they've worked in. If they've jumped around for reasons that make you suspect they may do the same if you hire them, then pass.

How You Ask Questions

You can't protect your business by warning candidates that answers won't be taken into consideration or that they don't have to answer. Chris Beck, the managing director of First Transitions, has more than twenty years of human resources experience. He tells the story of a sales manager conducting interviews in different cities for sales representatives for his manufacturing company:

The sales manager used the following 'technique' in all of the interviews: he truly thought that if he 'warned' the candidates that he intended to ask inappropriate questions by stating, 'this next part is off the record' — he could ask anything he wanted and it would be OK. After he told each candidate that 'this next part is off the record,' he proceeded to ask the following questions: How is your financial status? Are you in debt? How are things at home with your spouse — any trouble there? How will your spouse feel about you traveling if you get hired? When you travel on business, do you party or 'fool around' at all? Have you ever been in trouble with the law?

Beck continues:

Of course, there is nothing 'off the record' in an interview. Even if the interviewer takes the candidate for a cup of coffee after the interview, it is still considered part of the interview...inappropriate questions are still inappropriate. Some of these sales candidates did question the sales manager why they were being asked those questions during the interview. Fortunately for the manufacturing company, none of the unselected candidates filed a claim — although they could have.

Planning for an Interview

Linda Pophal, the author of Employee Management for Small Business, notes that employers should only ask those questions that relate to the job, but that making sure you stay on track during an interview can be particularly difficult.

For example, then, if you're hiring a data entry clerk, things like speed and accuracy will be important to you. What won't be important are things like sex, age, race, religion, marital status...It really is quite straightforward. Where small businesses (and even large ones!) get into trouble is when they begin just asking questions without a plan and without a focus on job-related hiring criteria.

In order to make sure that you stay on track during an interview it's important to have an idea of what you need before you even schedule the interview. Pophal suggests coming up with your questions before the interview:

If one of your requirements is that a candidate has strong customer service skills, you would come up with questions that you felt would help you most effectively determine whether/not they had these skills. For instance: 'Tell me about a time when you had to deal with a difficult customer. What was the situation? What did you do? What was the outcome?' or 'What do you believe are the strongest characteristics of a person with strong customer service skills? Which of these skills do you believe you are strongest at? Which do you feel you could improve on?'

If it proves difficult to come up with appropriate questions, Matuson points to more information as the solution.

The best way for small business owners to protect themselves is to educate themselves. Ways to do this include asking your attorney for a list of questions that are best avoided or working with an HR expert who can guide them through the minefield that is often associated with everyday hiring.

While you may not be able to get the free and easy feeling of choosing your questions on the spot, going in with a plan guarantees that you'll learn what you need to know about your prospective employees, without asking anything that could cause problems down the road.