ROCHELLE EISENBERG: The first thing I would do would be to have a set list of questions that I would ask each employee, that way you cannot be accused of asking men one set of questions and women another set of questions. I would jot down their answers and I would keep those sheets for about 2 or 3 years because in the event a law suit is filed, I would want to be able to show that I asked the same questions to everyone.
MARY KEATING: And it is only natural that you as an employer want to ask an employee questions that will elicit something to make you think that the person will fit in with your culture. The line that is usually crossed is when you get too intrusive into private lives.
ROCHELLE EISENBERG: You are not allowed to ask where were you born because that could invoke some kind of national origin discrimination.
MARY KEATING: You certainly do not want to ask women whether they intend to have children because it is the kind of sexual discrimination question that is somewhat easy to challenge.
ROCHELLE EISENBERG: I always remember that for my first job as an attorney where I worked for 24 years by the way, I got the job, this was back in the days where women were not hired and I was asked, whether you are married, what does your husband do, and are you planning on having children, who is going to take care of them? I did not think anything was odd about that, I had answers for all of it and I was hired again. Nowadays, if I did not get that job, then I would be at the ESE in 2 seconds filing my charge of discrimination on women.
MARY KEATING: Are you looking for somebody who is going to be dedicated to the job, ask that kind of question, what is your history, what kind of hours can you put in here.
ROCHELLE EISENBERG: You do not want to ask about arrests because statistically more African-Americans are arrested in proportion to the population than what say the white population. You can ask about convictions. The best rule is do not ask the question if you do not know what you are going to do with the answer.
Are you a U.S. citizen? ... Where were your parents born? ... What's your "native tongue?"
Try This Instead: Are you authorized to work in the United States? ... What languages do you read, speak or write fluently? (Better, but still a potential problem so make sure that these communication skills are relevant to job performance!)
How old are you? ... When did you graduate from high school? ... What's your birthday?
Try This Instead: Are you over the age of 18?
What's your marital status? ... Who do you live with? ... Do you plan to have kids? ... When? ... How many kids do you have? ... What are your child care arrangements?
Try This Instead: Would you be willing to relocate if necessary? ... Travel is an important part of the job. Would you be willing to travel as needed by the job (This question is okay, as long as all applicants for the job are asked it.) ... This job requires overtime occasionally. Would you be able and willing to work overtime as necessary? (Again, this question okay as long as all applicants for the job are asked it.)
What country club do you belong to?
Try This Instead: Do you belong to any professional or trade groups or other organizations that you consider relevant to your ability to perform this job?
How tall are you? ... How much do you weigh?
Try This Instead: Are you able to lift a 50-pound weight and carry it 100 yards, as that is part of the job? (Questions about height and weight are not acceptable unless minimum standards are essential to the safe performance of the job.)
Do you have any disabilities? ... Please complete the following medical history. ... Have you had any recent or past illnesses or operations? If yes, list and give dates. ... What was the date of your last physical exam? ... How's your family's health? ... When did you lose your eyesight?
Try This Instead: Are you able to perform the essential functions of this job with or without reasonable accommodations? (This question is okay if the interviewer thoroughly described the job.)
Have you ever been arrested?
Try This Instead: Have you ever been convicted of _____? (The crime should be reasonably related to the performance of the job in question, but, as our experts suggested in the video, even this question can be risky).