Interview Icebreakers Can Land You in Hot Water

Allen Smith, J.D. By Allen Smith, J.D. May 28, 2021
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Interview Icebreakers Can Land You in Hot Water

​Breaking the ice during job interviews without breaking the law is tougher than it sounds. Personal questions at job interviews are risky, legal experts say; they recommend interviewers stick to job-related inquiries, which are a safer way to build rapport.

However well-intentioned, questions about children and where a job applicant is from, among other questions, may violate civil rights laws and should be avoided during the interview.

"As a general rule, interview questions should pertain only to the requirements of the job," said Rae Vann, an attorney with Carlton Fields in Washington, D.C., and Hartford, Conn., and vice president of Core Triangle Consulting in Washington, D.C.

"That said, a more appropriate icebreaker question might be, 'Tell me about yourself,' " she added. But she noted that even this question "may elicit information that the interviewer does not want to and should not know."

HR professionals should train hiring managers and other interviewers about which questions are permissible to ask and which should be avoided, so that even if interviewers receive unsolicited information unrelated to the job, they know not to ask inappropriate follow-up questions, she said.

"Aside from chatting about the weather, it really is best to stay as close to job-related questions as possible," she said. "One question that could serve as both an icebreaker and a job-related inquiry is, 'Tell me about your career interests.' "

"It's fine to ask if the candidate had a good weekend or has plans for the upcoming weekend," said Susan Kline, an attorney with Faegre Drinker in Indianapolis. "Just train your interviewers to tactfully steer the conversation in safer directions if the candidate volunteers information that touches on protected status, such as sharing information about a church activity."

Some recommend a more conservative approach. If the employer is trying to establish rapport with the applicant, limit questions to information found on the applicant's resume, like hobbies or other interests, said Lisa Gingeleskie, an attorney with Lindabury, McCormick, Estabrook & Cooper in Westfield, N.J.

Even this approach may have legal risk, cautioned Dan Altchek, an attorney with Saul Ewing Arnstein & Lehr in Baltimore and New York City.

"There is almost always going to be some risk in asking candidates any questions about their personal lives, even though that is one of the most common ways to establish rapport with someone outside of the workplace," he said. "Some states have enacted laws that prohibit discrimination based on any lawful activity, so asking a candidate about personal interests or hobbies could elicit information about the candidate that the employer finds undesirable yet is still legally protected."

Children

Questions about children or child care arrangements may violate Title VII of the Civil Rights Act of 1964 if used to deny or limit employment opportunities, said Larry Casey, an attorney with Davis Malm in Boston.

Such questions could constitute illegal sex stereotyping, Vann explained.

Courts in various jurisdictions have held that interview questions concerning a job candidate's children or child care arrangements may show gender discrimination, particularly when a female candidate is asked this question but not a male candidate, said Shane Goodrich, an attorney with Morgan, Brown & Joy in Boston.

Even if both male and female applicants are asked such questions, the inquiries could show a discriminatory intent, Casey said.

Often a job applicant will steer the conversation into risk-laden territory by disclosing a past conviction, a disability or a religious practice, or asking questions about the interviewer's views of working parents, said Mike Arnold, an attorney with Mintz in New York City. If that happens, the interviewer should quickly but politely redirect the conversation back to whether the candidate can perform the essential job functions, he said.

Kline said that if a candidate voluntarily shares information about children, "an appropriate response is polite interest and possibly, depending on the conversation, assurance that the organization tries to be very supportive of working parents and personal family choices."

Don't ask about the number of children an applicant has or the children's ages or names, Goodrich cautioned. He said the Equal Employment Opportunity Commission has issued guidance stating that these questions for applicants may violate Title VII.

Hometown

Job applicants may volunteer where they are from, but attorneys say interviewers shouldn't ask where an applicant's hometown is. This may lead to a claim of national origin discrimination.

"Many Asian Americans will tell you that no matter if they have never been out of the country, they are often asked this question," said Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C.

Other Questions to Avoid

Employers should avoid questions about race, color, religion, national origin, ancestry, gender, sexual orientation, gender identity, marital or family status, age, physical or mental disabilities, or other topics not related to the applicant's ability to perform the job, Goodrich said.

"I once had a case where someone asked an applicant who was in a wheelchair what happened to her," Helms said. "This is not only inappropriate; it is incredibly insensitive."

Avoid Unconscious Bias

Casey recommended building rapport with applicants through job-related questions, such as: work experiences, companies worked for and skills that were acquired; training and education taken; courses taken; and education and training found most helpful to their jobs or the position an applicant is seeking. The company representative also can build rapport by providing information about the position and the employer, he added.

"Some interviewers like to play the connections game by asking candidates if they know people the interviewer knows," Kline said. "That approach can backfire, as it could imply that the organization's hiring decision-makers are looking for 'people like us' rather than valuing and promoting diversity.

"Be intentional about avoiding not just unlawful questions, but those that may reflect unconscious bias—for example, assuming that a tall Black candidate will enjoy talking about basketball, or that all women enjoy talking about shopping," Kline said. "Plan icebreaker questions that allow all candidates a similar opportunity to engage with you based on their diverse backgrounds and experiences."

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