Legal issues in interviews and interviewing

Legal Issues in Interviewing

Anne Sandberg

Charges of discrimination in hiring are serious issues for employers, and as an interviewer, you undertake tremendous responsibility in representing your organisation properly. Different countries around the world have different laws with respect to legality in hiring and it is certainly important to know the rules in your own part of the world and in the countries in which your company operates. In general, however, people who come in to interview for jobs expect to be treated fairly and without discrimination based on factors other than their qualifications for the job. Charges of discrimination arise when a candidate feels that he or she were treated unfairly because of they belong to a particular group, such as an ethnic group, because of their gender, age, disability, sexual orientation, religion, marital status, whether they have children or not – the list is a long one! Often, discrimination is unintentional – that is, interviewers treat a candidate in a way that is misunderstood by the candidate and offence is taken when offence was not intentional. It is important that you treat all job candidates with respect and dignity, and even then, you are not immune to charges of discrimination.

Remember that every person who you meet in a job interview is a member of the general public. Company reputation in the marketplace drives business and every candidate you interview forms an opinion about the company based on his or her meeting with you, everyone is a potential customer and word-of-mouth is powerful.

Sometimes you may have a real concern about someone’s ability to do the job and you need to address the issue but don’t want to be accused of discrimination. For example, consider a female candidate in her 30’s who mentions that she has four children at home. In this case you may wonder how she will manage her job and her children and be tempted to ask about her childcare provisions. Strictly speaking, this is an area that is rather private and you should not ask about it directly. You can, however, state any job requirement and ask the candidate if he or she can meet that requirement:

“This position requires that you be at work every day from 8:00 am until 4:30pm Monday through Friday and since you will be answering the phones during that time, it is essential that you be here and be on time. Is that a requirement that you can meet?”

Stating your expectation clearly is better than trying to solve candidates’ childcare problems for them. Simply state the requirement and ask the candidate if he or she can meet that requirement; this is called careful phrasing.

Laws and regulations vary around the world, and even within the same country (i.e. state to state). Further, case law changes interpretation of the law all the time. In the U.S., for example, discrimination based on an individual’s sexual preference is illegal in California, but not in many other states.

If hiring abroad, you need to know the law in those countries, as well, and customs, too. For example, in Mexico it is common practice for an employer to go out to a candidate’s home in the evening and interview his or her family in addition to interviewing the candidate in the office during work hours. In Malaysia it is common to advertise a job opening to a specific ethnic group, as employee populations are carefully balanced so that equal numbers of the three dominant minorities (Chinese Malaysians, local Malay and Indians) are represented.

In the U.S., the Americans with Disabilities Act (ADA) protects people with disabilities from employment discrimination with a very individualized interpretation of law that is the realm of specialists (e.g. attorneys and HR professionals).

Pre-employment practices are risky business when it comes to discrimination in the workplace, whether intentional or unintentional, and it is better to play it safe by involving a professional early on in the process if there are questions about safe practices.

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