Legal Review & Commentary

When interviewing, 'harmless' questions could get you sued

By Stacey Kusterbeck, Contributing Editor, ED Legal Letter, Atlanta

When you are interviewing, any comments about race, national origin, religion, age, family, military or marital status, and disability are off-limits, says John W. Robinson IV, a shareholder in the employee litigation department in the Tampa, FL, office of Fowler White.

Avoid any attempts at humor involving these topics, which are "protected categories" under the law, he advises. Gratuitous questions or statements about these topics can backfire with an unsuccessful applicant, Robinson warns. "Nobody blames herself when she does not get a job. She is looking for other reasons," he says.

Inappropriate comments can lead to Equal Employment Opportunity Commission (EEOC) charges and litigation by rejected candidates, warns Katrina Campbell, general counsel at Brightline Compliance, a Washington, DC, firm specializing in workplace issues. Avoid "creative" questions or remarks that could lead you down an inappropriate path, she advises. For example, don't joke or comment about your own age or the age of the staff by saying "There are a lot of gray hairs around here," or "It's like a college campus here." Candidates may take these statements as signs that they will not fit in, or if they are not hired later, may conclude it had something to do with their age, says Campbell.

In addition, questions that seem to relate to protected categories can be risky. For example, questions about whether a person has children and how old they are may indicate to a candidate that you question the candidate's ability to work certain hours. Instead, ask direct questions about the candidate's ability to work the specified schedule, to travel (if necessary), to working overtime, and other job requirements. For example, say: "Working in the emergency department requires that you work different shifts, including overnight shifts. Can you meet this job requirement?"