As we have seen in the course of my last few posts, there are a number of areas where recruiters need to tread very carefully when making inquiries during the course of job interviews so as not to breach federal, state or local discrimination laws. Although many of the relevant laws don’t actually prohibit the asking of particular questions, doing so could lead to accusations of discrimination being made by the candidate. The final two areas that I am going to look at in this, the last post in this mini-series, are military service discharges and arrests.
Military Service Discharge
The rights of those who have been in the military services not to face discrimination when they return to civilian employment are protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA). According to this Act, employers may not ask job candidates whether or not they were honorably discharged from the service, which they might feel inclined to do in order to get a feel for their background. Rather than asking the question outright, therefore, inquiries should be restricted to the skills and experience that the individual acquired through his or her service to the nation, and in what ways these are perceived to be beneficial to the employing organization. If the candidate voluntarily offers information concerning the circumstances of his or her discharge in the course of answering, then the employer cannot be accused of any wrongdoing.
Another question which must be avoided in relation to military service is whether the individual plans to take leave in order to serve in the military. If this is a concern for any reason, the interviewer should simply ask about the candidate’s short and longer term career objectives.
Although getting to the bottom of whether a job candidate has a squeaky clean criminal record might be a concern for many reasons, the trouble with asking about arrests is that these in themselves are not an indication that the individual was responsible for committing a crime or involved in it in any way whatsoever.
Being convicted of a crime, however, is a completely different matter, but even here employers must take care that any information uncovered is considered only in as far as it is relevant to the role that they are trying to fill. While it is fine, therefore, to ask ‘Have you ever been convicted of a crime, and if so when, where and what was the nature of the crime?’ or even to inquire about convictions for a particular crime which is related to the vacant position (for example, you could ask ‘Have you ever been convicted of theft?’ if the job involves dealing with cash), how the candidate’s response can be used in making an employment decision is in many cases restricted by law. Turning down an application because of a conviction for a driving offence when the job doesn’t actually involve any driving duties, for instance, may well be considered to be improper.
Even where information uncovered about criminal convictions is uncovered during the course of background checks carried out by outside agencies, the laws of certain states and areas in some cases dictate how that information may be used in making employment decisions.
As I have mentioned throughout the course of these past few posts, most times recruiters can avoid getting into difficulties with discrimination laws simply by determining what their real, underlying concern is and asking questions which are aimed directly at addressing these. If the fear is that the candidate may not stick around for very long if they were to be hired, then asking about their future plans in relation to children, their age or their physical health may not be in the least bit enlightening and leaves the interviewer in a position where he or she has to make assumptions which could see them facing legal action as a result. So, be sure to have your interview questions planned in advance, be aware of the danger areas and think hard about what it is that you really want to know.