Legal Considerations for Interviewers

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Updated August 24, 2022
Technical Recruiting and Hiring

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Some parts of the hiring process are dictated by law. Laws differ depending on the size of your company and the jurisdiction in which you operate. For example, California prohibits companies from asking candidates about their salary history,* but most states still allow such questions.* Giving legal advice is outside the scope of this work, but you can read more about the types of things you can and cannot do in an interview process below.

  • age

  • citizenship

  • criminal convictions

  • disability

  • family and marital status

  • gender and gender identity

  • national origin

  • medical history

  • race and ethnicity

  • religion

  • salary and benefits history

  • sexual orientation

  • whether the candidate has ever filed a worker’s compensation claim.

In addition, companies are prohibited from collecting and using genetic information in making employment decisions.*

dangerSome interviewers might try to make conversation without realizing that what they’re asking is illegal. Be wary of questions that do not explicitly refer to these issues but nonetheless drive at the same information. For example: When did you graduate from college? (age); How many sick days did you take this year? (medical history); Do you live alone? (family and marital status); Where does your husband work? (family and marital status, gender and gender identity, sexual orientation). Even indirectly posed questions like these are discriminatory and illegal.

Companies are permitted to seek voluntary demographic data from applicants as long as a particular candidate’s data is not shared with any employees who can affect whether that candidate receives an offer.* Moreover, many companies* are required to report annually the number of their employees by sex, race/ethnicity, and job category to the federal government.*

Checking References30 minutes, 13 links

Definition In hiring, references are a candidate’s former colleagues or supervisors who can speak to the candidate’s skills or past job performance. Candidates usually directly identify a set of references for the company to contact; but for referral candidates there also exists an implicit assumption that the individual who referred them will act as a reference.

If you are a hiring manager, you know that feeling of uncertainty: A candidate may seem incredibly promising, perhaps even passed a technical interview with flying colors. But no one on the team has worked with them before. What will they really be like to work with? What will make them successful? In what situations have they performed well or poorly in the past?

References allow the hiring team to collect the information needed to bolster confidence about the hiring decision. Checking references is an essential part of hiring well and wisely. Unfortunately, prospective employers often conduct reference checks informally, rather than as an established part of the hiring process. When rushed or performed poorly, reference checks can produce misleading or unfair results. But there is an effective way to give reference-checking the attention it deserves.

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