Blog Post: Interview Do's and Don'ts - Silencing Your Inner Chatty Cathy

• "What a pretty ring! When are you getting married?"
• "How DO you do it all. Who watches your kids?"
• "What happened to put you in a wheelchair?"
• "Oh, that's how you pronounce your last name. Surprising. You don't look like you are from that country."

Interviews. You either love them or you hate them. Those who love them view interviews as the best way to really get to know applicants. Those who hate them view interviews as a frustrating exercise in listening to what others think of themselves.

While interviews can be fantastic tools for learning about your applicants, they can also be fertile ground for creating unintended liability. If questions that a well-intended interviewer asks, intended to get at "who the candidate really is," solicit information that places the candidate in a protected class or information about protected off-duty conduct, then a decision not to hire that candidate could result in a verdict against the employer. State and Federal statutes prohibit adverse employment actions because of membership in a protected class and for lawful off-duty conduct. So, if you decide not to hire someone because of a protected characteristic (their race, national origin, gender, family responsibilities, religion or sincerely held belief, sexual orientation, disability, among others) or because of lawful off-duty conduct, that decision can give rise to liability.

How do you avoid liability for hiring decisions? The cleanest way is to avoid knowing anything about your applicants that could inappropriately influence your decision. It is also important to train the members of your staff who will interview applicants, and to encourage them to ask questions that allow you to compare apples to apples. If everyone asks the same questions, then your hiring decision will be more unbiased and easier to defend. Encourage them to avoid chatty questions. While the urge to ask questions might be based upon a genuine desire to find a "good fit," that "good fit" might be code for "individual biases." Questions about weekend plans could tease out lawful off-duty conduct (protected under Colorado law). Comments about a pretty diamond ring might encourage an applicant to discuss marital status. Commiseration about being a working parent might encourage sharing about child care responsibilities (a subset of gender discrimination). Comments about the ability of a candidate to perform a job, directed at one applicant in a wheelchair but not asked of an apparently able employee, could open an employer to an ADA claim.

Set your desire to make people feel comfortable aside. Sticking to the job description is the safest road. If you keep your questions focused on the ability of your applicant to perform the essential functions of the job, and standardize interview questions, your process should help you identify star employees and not star witnesses.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. if legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.