To Ask or Not to Ask – That is the Question

Jennifer S. Mirus | 11.16.17

Executives, managers and supervisors at banks are often asked to participate in interviews of potential candidates. More often than not, these individuals have received little or no training about what questions they must avoid in interviewing candidates. A primary concern in the hiring process is complying with equal employment laws and ensuring that your hiring process is free from discrimination or even the perception of discrimination. If a candidate is asked illegal or dubious questions in an interview and then does not get the job, the candidate may perceive that discrimination played a role in the hiring decision.

Generally speaking, interview questions should be job related and should focus on the candidate’s experience, training, education and characteristics that will make them successful in the role. On the other hand, questions to avoid are those that elicit information about protected class status. Protected classes are those categories that are protected by anti-discrimination laws such as age, race, disability status, religion, and marital status, to name a few. 

Protected class-related questions inadvertently sneak into interviews in a multitude of ways: 

• You ask an ​“experienced” looking candidate ​“What is your horizon at this point?” 
• You ask a younger female candidate if she is married and whether her spouse will mind her working weekends. 
• A candidate sees a poster in the bank supporting a cancer walk fundraiser and comments that cancer research is an important cause to him. You follow up with, ​“Has cancer hit you personally?” 

Even seemingly innocuous, open ended questions can inject protected class-related information into an interview. For instance, you ask a candidate ​“How do you spend your weekends?” And the candidate responds with a litany of his church-related activities. 

A trending issue concerns asking candidates about their compensation history. Wisconsin does not currently prohibit asking about salary history, but there is increased concern (and legislative response to that concern in some states) that asking about salary history can lead to disparate treatment of female applicants who have historically made less than their male counterparts. 

Some other questions to generally avoid are: 

• When did you graduate from high school? 
• What languages do you speak? (unless specifically job-related) 
• Where were you born/​where did you grow up? 
• What does your spouse do? 
• Do you have children? 
• Do you attend a church in town? 
• Have you ever been arrested? 
• What current or past medical problems may limit your ability to do this job? 
• Have you ever had a workers compensation injury? 
• How often are you absent from work due to illness? 
• What medications are you currently taking? 
• Have you had any drug or alcohol issues? 

This does not mean that employers are prohibited from obtaining any and all information about a candidate’s personal life or interests. That is not realistic. However, you have to realize that candidates who do not get jobs reflect on interviews to assess ​“what went wrong.” And if an interview included questions or conversation about things such as child care obligations, medical issues, national origin or other protected class-related issues, the candidate may wonder whether there was illegal bias in the hiring process. 

So what do you do? 

• It is a good idea to script out interview questions and pretty closely stick to them. That way, you are asking all candidates the same questions and you have a valid way to compare their answers. 
• Provide training for those in your bank who interview candidates. Better to provide training then kick people under the table when they ask an out-of-bounds question. 
• Document the objective and job-related reasons you hired the candidate you selected. This will help down the road if an unsuccessful candidate raises issues of unfair treatment or discrimination. 

• Compliance |
• Corporate Matters & Governance |
• Employment/HR