Are Your Interview Questions Setting You Up for a Lawsuit?
The day has come when you realize you have too much work to handle, and you need to hire a new bright-eyed associate to help with that heavy workload. You’re a lawyer, so you think you know what is appropriate and not appropriate to ask in an interview. However, some questions that might seem ok could actually be anything but. And while sometimes it’s easy to get comfortable and slip into small talk, you can actually get too chummy and risk setting yourself up for a lawsuit down the road.
Title VII of the Civil Rights Act (42 U.S.C.A. § 2000) makes it illegal for employers to refuse to hire or to discriminate against individuals because of their race, color, religion, sex or national origin. Since it’s assumed that hiring decisions are made based on an individual’s answers to the interviewer’s questions, questions asked during an interview can be used to show illegal discrimination on the company’s behalf.
So what does this mean for you? The key is to know which questions to avoid that could possibly show discrimination. For instance:
- Asking a potential hire if she’s pregnant is a big no-no. (For the record, you should probably avoid asking any woman if she’s pregnant, unless you’re 100% sure that she is.)
- Don’t ask “Are you married?” or even something as seemingly harmless as “What does your spouse do for a living?” Such questions could imply you’re trying to get more info on that person’s marital status.
- While it’s important to make sure your hire is legally eligible for employment, be careful not to ask if he or she is a U.S. citizen. Also, don’t ask what country he or she is from. While you may have good intentions, prying into national origin can be shown as evidence of bias if you end up not hiring the person.
- Even if you work at a super-casual firm or if you conduct the interview during happy hour, asking your potential hire if he or she is a social drinker could get you in trouble. If it turns out that the potential hire is a recovering alcoholic in rehab, that person would qualify as a person with a disability.
In order for a candidate to have a prima facie case against a potential employer for discrimination under Title VII, a plaintiff must prove an intentional discriminatory motive by presenting either direct or circumstantial evidence. He or she must show that he/she (1) belongs to a protected class; (2) applied for a position for which the employer was seeking applicants; (3) was qualified for the position; (4) was rejected; and (5) after his/her rejection, the position remained open and the employer continued to seek applicants from persons of her qualifications. (See Hill v. Seaboard Coast Line Railroad Co., 885 F.2d 804, 808 (11th Cir.1989).
Employers who are found to have violated Title VII could be required to pay punitive damages if the complaining party demonstrates that the employer engaged in a discriminatory practice “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” And no one wants to pay punitive damages.
So avoid the hot-button questions and issues mentioned in this article. And while questions such as “What’s your greatest weakness?” may seem dull, remember that it’s better to be safe than sued.
Berkley Sweetapple Vitale is an attorney at Sweetapple Broeker & Varkas in Boca Raton, FL. She is the author of the law and lifestyle blog Lady J. Berkley lives in Boynton Beach with her law school sweetheart, 8-month-old son, and yellow Labrador Retriever.