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Q. It has been a long time since our job application form has been updated. What can we legally ask of job applicants?

Beware of these Interview Traps

Listed below are four hot spots sometimes found in the hiring process.

Inappropriate interview questions can include inquiries about a candidate’s age, sex, race or religious preference. If a question doesn’t relate to the qualifications of a job, it doesn’t belong in an interview. Often what you want to learn from an improper question such as “What are your child-care arrangements?” can just as easily be had from “Is there any reason you can’t work overtime?”
Inconsistent screening procedures. Example: An interviewer might ask different questions of men than of women.
Favoritism. Interviewers sometimes let personal rapport with a candidate color their objective assessment of the candidate’s job qualifications.
Poor documentation. Employers sometimes fail to keep interview notes. Without a paper trail, the employer is left in the dark when answering to discrimination charges.

A. Many employers wrestle with a real dilemma in the hiring process. On one hand, you may want to know everything there is to know about applicants. On the other hand, it’s legally dangerous to know too much.

It is not so much a question of what you can legally ask on your application form, but rather can you legally use the information you get in the answers when considering an applicant for the job.

Example: In most situations it might be technically legal to ask an applicant’s age. But if you do, and your hiring decision results in a charge of age discrimination, you may find it difficult to explain that your hiring decision had nothing to do with the age of the applicant.

Not all “problem” questions are as obvious as those asking about age, sex and religion. Many appear to be completely innocent, but they may actually place an employer at risk. Here are some examples:

1. Does your application ask for educational background, even though a specific level of education is not required for the job?

2. Do you ask this question? “Are you available for Saturday or Sunday work?” This may appear discriminating to certain religious groups.

3. How about asking for the name and occupation of the applicant’s spouse? This one is loaded. The answer reveals marital status, probably sex and possibly identifies the applicant as a member of a minority group. All dangerous information to know when you are about to make a hiring decision.

4. Do you ask the following question? “Have you ever been arrested?” If so, scratch the question or replace it with a more defined question, something like this: “Have you ever been convicted, plead guilty, or plead no contest to a gross misdemeanor or felony? If so, explain. A conviction, guilty plea, or no contest plea will not necessarily disqualify you for employment consideration.”

NOTE: Review the exact wording of a question on this topic, and other topics on your application form, with your attorney.

5. Do you ask this question? “How many days were you absent from work in the last 12 months because of illness?” If you ask this question, don’t. The Americans with Disabilities Act and similar state laws barring discrimination against disabled applicants prohibit most employers from making pre-employment inquiries about an applicant’s health or the nature or severity of a disability.

Also regarding application forms and questions to applicants:

Consult with an attorney to familiarize yourself with laws regulating pre-employment inquiries in your state and locality. Have your attorney review your application form.
Justify each question on your application form as one of business necessity. That means you have a business-related reason to know the answer to the question.
Train managers and supervisors who interview applicants to ask only appropriate questions.
Discourage applicants from volunteering information which, if used in making a hiring decision could support a claim of illegal discrimination.

[NOTE: Information and guidance in this story is intended to provide accurate and helpful information on the subjects covered. It is not intended to provide a legal service for readers’ individual needs. For legal guidance in your specific situations, always consult with an attorney who is familiar with employment law and labor issues.]