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INTERVIEWING: IT'S NOT JUST WHAT IS ASKED, BUT HOW AND WHY
by
Thamer E. "Chip" Temple III, Esq.
An interview often is the most critical part of the hiring process. Yet, it is frequently unstructured and unpredictable. The applicant will remember it in detail. Months afterward, applicants still will remember in detail their impressions of the meeting. At the same time, the interviewer may only vaguely remember it. He or she may have met with many candidates, and often will remember only the candidate selected was judged best, not why others were not selected. For this reason, the interviewing process is fertile ground for legal challenges.
There is good news, however. The range of potential legal issues arising from the interview process is relatively narrow. Typically, unsuccessful applicants will perceive unfair selection criteria based on something said and claim discrimination.
The first of two guiding principles in interviewing, therefore, is: Keep inquiries related to the job in question. Job-related inquiries are inherently justifiable. Discussions unrelated to the job, on the other hand, immediately call in to question the interviewer's motive and basis for the hiring decision.
A common pitfall in interviews is "small talk." Invariably, small talk focuses on something personal to the applicant. The interviewer may think nothing of it. But the applicant legitimately may think it is relevant to the hiring decision since it was discussed during the interview. The personal information exchanged during small talk often is difficult to justify after the fact.
Many interviewers believe small talk helps set a relaxed tone for the interview. This can be done by demeanor alone. If small talk is necessary, it should be brief, made at the outset of the interview, and focus on clearly non-personal topics such as the weather or traffic.
Limiting inquiries to job-related topics goes a long way to protecting employers from post-interview legal challenges. But, it is not a fail-safe rule alone. A justifiable, job-related question is not automatically legal. Legitimate inquiries can be misconstrued as discriminatory when the question has the wrong focus.
This raises the second guiding principle for interviewers: Focus each inquiry on essential job requirements. These inquiries are definitionally nondiscriminatory.
Consider, for example, a male interviewer who asks for a female applicant's maiden name. This might suggest gender bias, concerns about marital status, or a questionable inquiry into heritage. The interviewer, however, may be asking the question for the legitimate purposes of checking references, education, or background. A better question would be, "Have you ever worked under a different name?" or "Is there additional information about name changes of which I should be aware?" This way, the interviewer obtains the necessary information without unnecessary focus on gender, marriage and heritage.
Another example: Interviewers often are concerned about reliability. The interviewer may ask about the applicant's childcare arrangements. This raises the specter of marital bias or family leave concerns. The interviewer may ask about transportation to and from work. This raises issues of race and national origin bias, since in some areas a substantially higher percentage of minorities use the mass transit. The interviewer may even ask about religion because of concerns that the applicant may not always be available to work when needed. All of these inquiries are arguably related to reliability, yet each is impermissible.
The problem is that each inquiry focuses on specific reasons why the applicant might miss work, rather than on the job requirement of regular attendance. Acceptable inquiries would be to ask what hours and days the applicant can work; what specific times he or she cannot work; or does he or she have responsibilities that will interfere with the specific hours of the job. The focus of such questions is on attendance (a legitimate inquiry) rather than on the personal reasons why the applicant might be absent (a dangerous area of inquiry at best).
In each case, simply shifting the focus from a personal situation to the job's requirements transforms an illegal inquiry into a permissible one.
Finally, a common interviewing technique is to ask open-ended questions to elicit broader answers. A common problem is that, in response, applicants often provide unwanted personal information upon which the employer cannot base its hiring decision. For instance, an interviewer may ask about availability and the applicant may respond that they are unavailable certain days because they must care for a disabled child. Months later, the applicant may remember only the discussion of the disabled child and conclude that it was the reason for their rejection. What should the interviewer do?
Affirmatively return the discussion to the job's requirements. State immediately what the interviewer would want to say in response to a legal challenge months later---the limited availability may pose a problem, but the applicant's relationship to the child is not something that the interviewer will consider, and the applicant is not expected to volunteer personal information in the interview. Such a clear statement of position is not likely to be misunderstood and will be remembered by both parties months later.
Keeping the interview focused on the applicant's ability to satisfy the job's requirements accomplishes two goals: It provides the interviewer with necessary information to assess the applicant, and it avoids any misunderstanding about the nature and purpose of the interviewer's inquiries. This, in turn, enhances the employer's prospect of hiring the right candidate without subsequent legal challenge by others.
About the author: Thamer E. "Chip" Temple is a principal of the Firm and primarily practices labor and employment law, representing management and executives in all areas of employer rights.
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