Some of managers’ worst job-interview slip-ups happen as the interviewers are innocently trying to break the ice and get applicants to relax, according to Barbara Hoey, an attorney at Kelley Drye in New York City.
“Nine times out of 10, the questions are innocent,” she said, but they can leave a bad impression.
For example, a manager may see an applicant’s address on her resume and say: “I see you’re in this area. There’s a great club there. Do you go?”
If the candidate responds, “No, I’m Muslim and don’t drink,” the conversation may become chillier, and the applicant might wonder later if religious discrimination factored into a rejection.
Or, Hoey added, the manager may say, “I go to church just around the corner from where you live,” to which the applicant may respond, “I’m Jewish.”
The attempt to break the ice was innocent, but, suddenly, the manager may be on the brink of too much information (TMI). Even if the manager drops the subject, the applicant may think later that, because the manager talked about her church, someone else was selected for religious reasons.
“It’s unreasonable to expect managers not to engage in any conversation with the individual,” Hoey said. “But avoid personal politics, religion, ethnicity and race.”
“It’s unrealistic to think there will be absolutely no unexpected conversation,” agreed Christine Walters, SPHR, an HR consultant at FiveLCompany in Westminster, Md. “It’s amazing what candidates will disclose in an interview. We’ve heard it all, right? From financial to family to substance [abuse] to medical—all sorts of problems, and most of which go to some protected status.”
She advises employers to “train the managers in what questions to not ask and how to promptly redirect conversation that strays back to the person’s ability to perform the essential functions of the job. And when all else fails and you find you’ve landed in an unsafe conversation about personal issues, don’t panic; just be sure the candidate took you there and you did not lead the candidate there by asking an inappropriate question.
“I often remind managers that we cannot discriminate against what we do not know,” Walters continued. “So you don’t want to know that a candidate sings in his local synagogue; belongs to a professional association that indicates race or national origin; graduated from high school in 1978; quit his last job because his boss wouldn’t let him try to organize a union; was fired from his last job for excessive absenteeism because he was clinically depressed and couldn’t get out of bed.”
Essential Job Functions
Sometimes an applicant has an obvious disability or medical condition that may cause the employer to wonder if the person can perform the essential job functions.
Hoey doesn’t worry about questions around the common cold. A manager can just say something like, “Oh, that’s going around. Hope you’re OK.”
But what if someone has a cast on his leg? It also would be fine for the manager to ask, “Are you OK? Comfortable sitting there?” She cautioned, though, that an employer should “not go any further in their conversation about it” other than to find out if the applicant can perform essential duties. Otherwise, the manager could be viewed as violating the Americans with Disabilities Act’s prohibition on pre-offer disability-related questions.
Hoey suggested that a hiring manager say, “If you get past this round and are hired, we’d want you to start May 1. Is that a problem?”
If it’s a desk job, the crutches and cast may not be a problem. But for other positions, they may be an insurmountable barrier. If the candidate isn’t able to start on the suggested date, but the employer is still interested, he manager could offer to have the individual join the company with the next group of new hires, say on July 1, provided that subsequent interviews go well.
Avoid questions about marriage, children and family responsibilities, Hoey cautioned, calling these “very problematic.” In New York these queries could raise sex-discrimination as well as marital-status-discrimination claims. So don’t ask, “What do you do for child care?” or questions along those lines, she warned.
And if an applicant’s resume notes participation in a club or affinity organization with some connection to race or ethnicity, don’t ask questions about it, she said.
Do be clear about expectations. If overtime will be required, ask the candidate about her availability to work longer hours or on weekends.
It can be tricky if the business has seven-day-a-week operations, as hospitals do, but managers should be able to handle this issue if they are trained not to immediately say no and not to immediately eliminate someone from competing for a job based on his unavailability on certain days, even if the manager is certain it won’t work out.
“Remember,” Hoey advised, “Say ‘Maybe.’ You win the battle if you get managers to say, ‘I’m not sure. We will consider.’ ” But when managers instead say, “No, this won’t work,” there is a risk that the applicant may bring a discrimination claim that the employer did not go through the interactive process to reach a reasonable accommodation.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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