October 4, 2004

By Jim Leverette

An inappropriate or poorly worded question when interviewing a candidate can cause you to run afoul of federal and state anti-discrimination laws that stipulate stiff fines and other penalties. The principles that will help you stay on the right side of the law include:

Stick to the fundamental responsibilities of the job and the skill requirements of the role.

Be disciplined when describing the personality of the person you are looking for. Don’t say “young,” when you mean “energetic” or “someone open to learning.” Favor behavior-descriptive terms like “flexible,” “good sense of humor,” or “focused,” when describing personality.

Our clients want the top echelons of their corporations to reflect America today and actively seek diversity in their boardrooms and C-level suites. They associate diversity with strength; so do we. However, given how easy it is to inadvertently open yourself to tough penalties and lawsuits when interviewing, here are some practical applications to bear in mind:

Implementing an affirmative action program is laudable; but, make certain you give due consideration to all candidates whether they fall inside your program or not.

Title VII of the Civil Rights Act of 1964 forbids any search consultant to refer candidates strictly based on race, color, national origin, sex, age, marital status or handicap. Other important laws focus on specific areas: The Age Discrimination in Employment Act of 1967 covers age discrimination-which, by the way, only applies to people between the ages of 40 and 70. The Pregnancy Discrimination Act of 1978 says an employer may not discriminate based on pregnancy. And The Americans with Disabilities Act of 1992 protects disabled workers.

When our firm is engaged to recruit minorities or women, we are legally bound to tell the client “we can only refer candidates on a non-discriminatory basis” and will submit all qualified candidates.

However, we can and will expand our search efforts to increase the likelihood of identifying minority or female candidates so we will have more women and minorities to refer. This is perfectly legal and all to the good. All qualified candidates should be interviewed regardless of whatever affirmative action parameters you may wish to emphasize.

When damage results from interviewing and hiring practices that do not follow the law, that person is entitled to reimbursement. For example, when an individual is not referred by a search firm because of that person’s race, both the firm and the consultant could be liable to that person for the value of the lost opportunity and the difference between what he or she would have earned, as well as what they actually earned during the same period of time had they not been discriminated against.

If you want to find out how dedicated an individual might be if hired for a position, proceed with care.

It is understandable that you will want to learn if candidates emphasize home life and charitable activities over their employment position or the opposite in order to understand what role their work plays in their lives. However, don’t ask questions about these topics unless the candidate volunteers this information. Typically, family, job or balance-orientation will come out over the course of several interviews. If you talk about your weekend activities, they will talk about theirs. The same goes for hobbies, organizations and family.

Does the position you are interviewing for have a Bona Fide Occupational Qualification Exemption (BFOQ)?

This is the only exception to Title VII that actually allows you to discriminate based on religion, sex or national origin in cases where the role you’re filling has a BFOQ reasonable to accomplishing the objectives of the role.

The BFOQ cannot be based upon customer or employee preferences. For example, you cannot invoke it by saying, “Our customers want to place their orders with a man,” or, “This group won’t work for a woman,” even if women or men traditionally hold certain positions in your industry.

It applies only where community standards of morality or procedure would be violated if a member of one religion, sex or national origin held a job traditionally held by a member of another. Remember — “the BFOQ applies to religion, sex or national origin only. It does not apply to race or color.”

The Americans with Disabilities Act (ADA) of 1992 goes into great detail defining who the Act covers, what the word “disability” means and what job accommodations should or should not be made. Suffice it to say, when hiring people with disabilities, pay special attention to what, by law, is appropriate to ask when interviewing. For example, it is appropriate to ask, “Can you perform any or all functions of the role?”

However, you should not ask the question in such a way that requires the individual to mention whether a reasonable accommodation is needed. Although it is appropriate to ask, “Please describe or demonstrate how you would do the job.”

Remember, you may only do so as long as all candidates for the position are asked to give this description or demonstration. Should an individual need a reasonable accommodation in order to perform the demonstration, you must either provide the reasonable accommodation or allow that person to describe how he or she would perform the job function.

There are many other important areas to consider, but as you can see, avoiding discrimination in the interviewing and hiring process can be a matter of some delicacy.

James R. Leverette is president of Randall James Monroe Inc., a Dallas-based global executive search consultancy. He can be reached at