Pitfalls When Screening New Hires

On Jan 18, 2022

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Q: Is there a downside to screening the social media accounts of job candidates?

First, screening social media accounts creates extra risk. You could be exposed to information about a candidate’s protected classes, and if your ultimate hiring decision were challenged, you would need to prove that those characteristics were not a factor in your decision.

Second, it takes extra time and adds an unnecessary cost to your hiring process. The questions you ask on the application and during the interview should provide you with sufficient information to determine whether a candidate is the right person for the job. If you’re not getting the information you need, we would recommend reevaluating the questions you’re asking during the hiring process.

Q: What sort of questions should we ask and avoid asking during a job interview?

The questions you ask in a job interview should all be job-related and nondiscriminatory. You should avoid questions that are not job-related or that cause an applicant to tell you about their inclusion in a protected class. For example, if the position requires someone to lift 25 pounds repeatedly throughout the day, you should ask the applicant whether they can lift 25 pounds repeatedly throughout the day. You should not ask whether they have back pain or any other physical issues that might prevent them from lifting 25 pounds throughout the day. The latter question would be discriminatory.

Protected classes include race, national origin, citizenship status, religious affiliation, disabilities, pregnancy, sexual orientation or gender identity, past illnesses (including use of sick leave or workers’ comp claims), age, genetic information, or military service. You should also avoid asking about things that might be protected by state law (e.g., marital status and political affiliation). If you were to ask any questions pertaining to these matters, rejected candidates could claim that your decision was based on their inclusion in these classes rather than their credentials.

On a final note, you should also avoid questions that are asked purely out of curiosity (Do you have children? What kind of accent is that? What do you do for fun?), as those can easily be misconstrued as discriminatory. When in doubt, return to the job description. Make sure your questions are directly related to the essential duties and answer the ultimate question: Can the applicant do the job?

Q: How should we respond when an applicant reveals during an interview that they are part of a protected class?

If an applicant reveals protected information, your primary responsibility is to make sure you do not allow this information to become a factor in determining whether to hire them.

If an applicant expresses concern as to whether their inclusion in a protected class will harm their chances of being hired, assure them it will not. We would recommend telling them that you will be making the decision solely on their ability to perform the essential functions of the job.

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