Blog Post: ...So What CAN I Ask?!: Savvy, Liability-Dodging Interviews

On some topics, no question will pass legal muster. Questions about sexual orientation, age, national origin, race and gender, among others, are prohibited. But, I am happy to report that there are questions about even thorny issues that you can ask in an interview that even your lawyer will like. Here are a few "dos and don'ts" to keep in mind.

When wondering how a potential employee will work the hours required, 7:00 am until 4 pm, in light of their family situation, don't ask "Are your children in child care? What hours do you have them at the center?" Do ask"Can you work at night and on weekends?" Or "Is there any reason you can not be at work at 7:00 a.m.?" These questions focus on the employee's ability to meet the job requirements, a timely arrival, and not on their family situation.

When wondering if a potential employee will be able to perform the physical tasks required, don't ask "Do you have a disability that will interfere with your ability to perform the job?" Instead, do ask "Can you lift "x" pounds" or "Do you need any special accommodation to perform the job you have applied for?" As long as the questions are specific to job duties, you are within the requirements of the Americans with Disabilities Act.

When wondering if a candidate has a background suitable for employment with your organization, don't ask about arrests. Questions about arrests can have a disparate impact on racial minorities. Do ask about relevant convictions, such as "Have you ever been convicted under criminal law within the past five years, excluding minor traffic violations" or "Have you been convicted for acts of dishonesty or breach of trust?" If you are going to ask these questions, be prepared to link the inquiry to a legitimate job requirement. For example, employees who will work around children should be screened for crimes related to children. Employees who will handle cash should be screened for theft charges.

If there is a rule of thumb, it is this: If your questions focus on the applicant's ability to perform the essential functions of the job rather than their actual or perceived inabilities or other irrelevant information, then you are probably in the clear.

For other insights into crafting questions that will deliver information that you need to know, without running afoul of Colorado and Federal law, see the handout located at http://www.irelandstapleton.com/files/File/CHRA%20Handout%20-%20Web.pdf.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.