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Job seekers aren’t the only ones who may say something inappropriate or botch a question during a job interview. A recent survey by CareerBuilder found that approximately 20 percent of hiring managers reported that they have asked an interview question only to find out later that asking the question possibly violated the law.
“It’s important for both interviewer and interviewee to understand what employers do and don’t have a legal right to ask in a job interview for both parties’ protection,” said Rosemary Haefner, chief human resource officer at CareerBuilder. “Though their intention may be harmless, hiring managers could be putting themselves at risk for legal action by asking [certain] questions, as job candidates could argue that some questions were discriminatory.”
More than 2,100 hiring and human resource managers throughout the United States responded to the survey, which was sponsored by CareerBuilder and conducted by Harris Poll Online.
A number of hiring managers responding to the poll said they didn’t know if it was legal to ask job applicants about arrest records. Attorneys familiar with the issue agreed that asking about applicants’ criminal records can be tricky for hiring managers.
The Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 designed to help employers understand what they can and can’t ask regarding criminal records.
The EEOC guidance states that an “arrest does not establish that criminal conduct has occurred, and a job exclusion based on an arrest, in itself, is not job-related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”
Asking job applicants about their criminal records has become something of a hot employment topic as a growing number of states and municipalities have enacted “ban-the-box” laws that prohibit employers from asking on job applications if job seekers have been convicted of a crime.
Ban-the-box laws generally allow employers to conduct background screenings and ask about convictions later in the employment process—such as during job interviews. However, the constantly changing legal landscape on what employers can and can’t ask on applications and during interviews can confuse and frustrate many hiring managers, staffing experts say.
Generally, the best policy is to avoid questions about applicants’ age, marital status, political beliefs, disabilities, ethnicity, religion and family. Some questions that can be legal and seem relevant to the job can be problematic by the way the question is posed. For example, the question “Are you a U.S. citizen?” might seem reasonable if a hiring manager is trying to determine if an applicant is eligible to work in the U.S. However, the better and more legally prudent question is: “Are you eligible to work in the United States?” Asking about a person’s citizenship status could reveal information about ethnic and national origin that could expose employers to complaints of bias.
Bill Leonard is a senior writer for SHRM.
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