While most employers are aware of the protected classes or areas that cannot be discussed during the interview process – age, national origin, race, gender, religion and disability – most hiring authorities should keep in mind these other important points:

 

      While an employer can ask a candidate if they belong to organizations related to their potential job, they cannot ask about what involvement the candidate has in the organization.

 

      An employer can ask a candidate if they are willing to work overtime. However, an employer must not ask about the willingness to work on religious holidays or whether the employee has children that will make working overtime difficult.

 

      An employer may ask the candidate for references, but not from a priest, minister or rabbi.

 

      No photos should be taken of the candidate unless they have been hired by the employer.

 

      Companies should always include a statement of being an equal opportunity employer on their application.   The application should clearly state that it does not equal an employment contract, nor provide any guarantee that the candidate will be hired.

 

      An employer may administer skills testing for areas that are relevant to the job in question; however, those tests must be administered to all candidates who are applying for the same position.

 

      When conducting reference checks, the employer should avoid questions that may involve the status of the candidate in one of the protected classes.

 

Poor interview preparation can not only lead to bad hiring decision, it can also lead to costly litigation. Employers should document the interview and hiring process as much as possible and always consult with its in-house legal department or outside counsel.