Proper Law Firms and Improper Questions

by Terri Olson

Oddly enough, it is sometimes the most old-fashioned and proper law firms that ask the most personal questions of applicants for positions at these firms. And they are shocked when told that their inquiries regarding political affiliation, children's ages, or spouse's race were improper or even illegal. "We don't understand," they say. "We're friendly people here. We just wanted to know if they would fit in with the way we do business. Why is everyone so touchy nowadays?"

A lawyer who is asked to explain why a law firm shouldn't ask job applicants certain questions will likely respond by citing Fair Labor Standards Act sections or EEOC guidelines (as he or she should!). But, as a management consultant, my perspective is a little different. I like to point out to the firms with which I work that most of these "forbidden" questions are simply attempts to find out: "Are you like me?" (Human beings being what they are, applicants who can show they're like the interviewer almost always have a better chance than those who don't.)

But the questions asked should be leading to a convincing answer to: do you have the best ability to perform this job? If you just want to know if he's a Rotarian or if she's a Democrat, this may tell you "are you like me?", but it won't tell you much if anything about ability to do the job. So questions such as this fail not only on the counts of being potentially racist, sexist, etc., but also on the count of being useful. (If you are really burning to know the answer, you can always ask someone after he or she has been hired. Do not, however, use this as an opportunity to rescind your job offer.)

Similarly, there are topics about which employers generally need to know, but prospective employers don't. Many of these have to do with eligibility to work in this country. If you read a personnel manual, you will likely see an injunction against asking about a green card, for example, because it could be used as a way to discriminate against various ethnic minorities. I also like to use the "need to know" rule here: do you, as a prospective employer, need to know whether someone has a green card? No, you're supposed to assume than anyone applying for work is able to work in this country. However, do you, as an employer, need to know the same information? Yes, for purposes of filling out an employee's I-9. Therefore, ask the question when and not until you need to know the answer!

Although it may not have legal weight, I also like to employ the "MYOB" or "Miss Manners" rule for business interviews. Imagine that you are seated at a formal dinner talking to someone you have just met. Most questions that in formal social situations would be considered rude or nosy don't have any real relevance in an interview either. "Are you gay? What kind of accent do you have? Does your child's father live with you?" If your question would get a freezing "I beg your pardon!" in any other circumstance, you can generally assume it has no place in the interview.

Other groups of questions touch on what are called "Bona Fide Occupational Qualifications," or "BFOQ"s, for short. These are touchy indeed, partly because some of them are constantly in flux. A few short years ago, it was a natural assumption that stewardesses and receptionists needed to be pretty. Requiring this of all applicants wasn't discrimination; beauty was a BFOQ. (We can see the same situation acting itself out now, with furious arguments on both sides, in the debates over Hooters girls.)

These presumptions work themselves into the job interviews through questions about racial lineage (which isn't always obvious), age, and identification with ethnic or social groups. Lest you think that these issues don't apply to law firms, I have been assured that a new litigator must be a woman because clients won't accept a man, that a receptionist must be young to convey an impression of vigor and progressiveness in keeping with the firm's position in the community, and that support staff must be African-American to better identify with the client base.

Are these or are these not BFOQs? I'm not qualified to answer the question, but I can say that any firm that feels that age, gender, or any other physical characteristic should be a BFOQ for a particular job needs to have a clear OK from an attorney experienced in employment claims before proceeding with interviewing. (And this may be very difficult to find, regardless of the situation.)

A third set of problems arises from questions that may be relevant, but tend to be targeted to select groups of applicants or phrased in such a way as to imply that a particular group would have more of a problem. For example, if a job involves extensive overnight travel, the fact must be pointed out in the interview and applicants advised of this requirement. No problem. Unfortunately, although this seems relatively simple, when interview time arrives, many questioners either point this out only to women applicants, or worse, imply that the women would be likely to find this a problem (e.g., Do you have small children? Does your husband mind if you travel?)

Firms can easily find out the answer to one issue (the relevant one - can you travel overnight) without probing into the applicant's marital status, children's ages, or spouse's attitudes towards travel. The best way to do so is to have a checklist of questions that are phrased in the same way to every applicant for the job.

Because these are such thorny topics, we frequently avoid them, instead choosing to "pre-qualify" applicants according to our presumptions about what is or isn't required for the position without overt discussion. Whatever you do, don't do that. It isn't fair to your applicants and it may not be fair to the position. Focus only on what the job needs and you may end up with the best employee you ever had.

This article was originally published in the Georgia Bar Journal, February 1998, Vol. 3 No. 4