June 18, 2018

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Interview for Success and Avoid the Legal Pitfalls

We all know how litigious our society has become in the area of employment-related issues. Every recruiter, hiring manager, executive, and department manager must realize that asking the wrong questions or making improper inquiries can lead to discrimination or wrongful-discharge lawsuits, and these suits can be won or lost based on statements made during the interview process. Thus, it is important to incorporate risk management into your interviewing process to help minimize your firm's exposure to employment practices liability.

You, or your company, could be accused of asking improper questions or making discriminatory statements or comments that reflect bias. It is also possible to make assurances or promises during interviews that can be interpreted as binding contracts. Recognizing these potential danger areas is the best way to avoid saying the wrong thing during interviews.

To minimize the risk of discrimination lawsuits, it's important for interviewers to be familiar with topics that aren't permissible for questioning. For example, you shouldn't ask a female applicant detailed questions about her husband, children and family plans. Such questions can be used as proof of sex discrimination if a male applicant is selected for the position, or if the female is hired and later terminated. Older applicants shouldn't be asked about their ability to take instructions from younger supervisors.

It is also important to avoid making statements during the interview process that could be alleged to create a contract of employment. When describing the job avoid using terms like "permanent", "career job opportunity" or "long term".

Interviewers should also avoid making excessive assurances about job security. Avoid statements that employment will continue as long as the employee does a good job. For example, suppose that an applicant is told that "if you do a good job, there's no reason why you can't work here for the rest of your career." The applicant accepts the job and six months later is laid off due to personnel cutbacks. This could lead to a breach of contract claim where the employee asserts that he or she can't be terminated unless it's proven that he or she didn't do a "good job". Courts have on occasion held that such promises made during interviews created contracts of employment.

Most companies have at least two people responsible for interviewing and hiring applicants. It's critical to have procedures to ensure consistency. Develop interviewing forms containing objective criteria to serve as checklists. They ensure consistency between interviewers, as well as create documentation to support the decision if a discrimination charge is later filed by an unsuccessful applicant.

Learn to assess job candidates on their merits. When developing evaluation criteria, breakdown broad, subjective impressions to more objective factors.

Obviously, you must prepare for the interview by reviewing the application, resume, test results, and other materials submitted by the candidate. Try and put the candidate at ease and ask questions that can't be answered with a "yes" or "no" response. These open ended questions allow applicants to tell all about their skills, knowledge and abilities. Some examples are: "Why are you leaving your current employer?" "Do you prefer routine, consistent work or faced-paced tasks that change daily?" "And why?"

Here are three potential dangers when interviewing.

The following are examples of questions that should be avoided in interviews because they may be alleged to show illegal bias.

As you can see, these rather simple and seemingly non-threatening questions can easily violate one of the aforementioned dangers when conducting interviews.

Companies that use "best practices" in interviewing and that are extremely effective in consistently hiring top performers, use customized or standard behavioral-based interview guides to remain consistent in their line of questioning. These companies not only train their recruiters, but they train their executives, department managers, and hiring managers on legal and effective interview questions and techniques to utilize during the interview.

These same "risk wise" companies will conduct a job analysis audit for every position within their companies to establish the types of behavioral and situational questions necessary for their interviewing process. A job analysis audit is a process whereby a company compiles objective data of what is required to be successful in a given position. This process is conducted via interviews, surveys, and testing (both hard skills and soft skills testing). This process allows the company to objectively identify the competencies, behaviors, thinking and decision making styles, as well as the technical skills that are common among their top performers and required for the position in question. This process establishes a hiring "benchmark" or interviewing "guide" to follow. The resulting list of critical competencies is what interviewers will use to evaluate candidates. This benchmark, custom to each position, leads the company to define the core line of behavioral interview questions that will uncover these critical competencies, behaviors, and thinking styles, as they directly relate to the job requirements.

Some of the most effective pre-employment behavioral assessments in the market will provide the necessary behavioral interview questions to pose to candidates. This is due to the assessment's objective evaluation of each candidate's competencies.

Here are a few examples of legally-defensible behavioral interview questions that will assist in uncovering core competencies in an interview.

Conducting a job analysis audit to objectively identify the core competencies required for a given job, and then customizing a list of behavioral-based interview questions like the ones mentioned above to identify those competencies, can significantly reduce your exposure to employment practices claims and increase your potential for hiring top performers.

By instituting guidelines such as these and making sure that your organization's managers follow them you will have gone far in reducing your risk of a lawsuit from an employee or job applicant.

-Mike Poskey
Vice President of ZERORISK HR, Inc., a Dallas-based human resources risk management firm. For more information, visit or email Mike at

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