by Samuel K. Darling, Everett Business Attorney
Congratulations–you’re hiring. Your business must be doing well, and you probably want to keep it that way by learning the business law principles applicable to the hiring process.
In this edition of Genesis Law Firm Teaches, our firm’s Managing Attorney, Sam, identifies which interview questions are unlawful in Washington State, why they’re unlawful, and how you can rephrase your interview questions lawfully.
[Enhanced Video Transcript]:
Hello and welcome to another edition of Genesis Law Firm Teaches. Today’s topic – Unlawful Interview Questions in Washington State. Now, the gist is fairly simple. You’re not allowed to discriminate against people in protected classifications, and that limits the questions you can ask applicants. There are, however, some pitfalls here. So make sure that you stay tuned for those.
The information I’m going to give today is widely applicable to people throughout the United States, because it derives mostly from federal law. But there are some areas that are Washington-specific, and I’ll point out which ones those are.
Additionally, I will be identifying topics some viewers will want to research further. If you if you fall into that category, I just want to caution you about where you get your information. I’ve been doing a little of my own background research on what other people have to say on this and related topics, and I found out that there are a number of articles and videos out there that have misinformation. So I would be careful about doing my further research by going on to places like, maybe, a career building website, or going on to a news agency website. Try to get your information from articles written by attorneys, and better yet, by law firms where there are multiple attorneys.
What Questions Can’t I Ask?
- Sexual Orientation. You’re not allowed to ask questions about sexual orientation. That, by the way, is more Washington law than federal.
- Family Status. The next area would be family status. Not allowed to ask questions about whether a person is married, has children, is pregnant, or is intending to get pregnant.
Now, pregnancy is a very big issue for many employers. As an employer, we want to know whether the person we’re hiring is going to be available to perform the job. The good news: you can ask questions that get more to the heart of what you really want to know. You can ask whether that person is going to be available during a certain time-frame. So, you might ask, “are you going to be available for the next three months”, “for the next six months”, “12 months?” Whatever your crunch time period happens to be, you can ask about the person’s availability to perform work during it.
- Political Affiliation. You cannot ask questions about a person’s political affiliation. I think for most people, that’s common sense.
- Disability. We are not allowed to discriminate on the basis of a person’s disability. Many interviewers accidentally ask questions that pertain to an applicant’s medical conditions or maybe the person’s medications. If you need to ask questions about that, you should be very careful.
Obesity is another protected category. It is considered a disability under federal law.
In Washington, the definition of disability is even more expansive than under federal law. So even very small disabilities, things that you wouldn’t consider a disability in an average conversation with your neighbor, those oftentimes are protected. For example, if a person has a vision impairment, that could be a disability that would entitle that person to protection, and asking about that disability could put you in dangerous territory.
Now, it may be that you have legitimate job requirements that a person with a certain disability would not be able to perform. There may be an exception available to you. In that situation, I would talk with an attorney because it’s a gray area of the law.
- Gender. Gender is an area where you’re not allowed to ask questions.
- Military Status. You’re not allowed to ask questions pertaining to a person’s military status. Now, that again is a common sense area because we want to protect the people who are putting their lives on the line to keep us safe. But nonetheless, many employers will ask questions that get themselves into trouble, questions like, “Are you in the Reserve or are you in the National Guard.” Those are things that could take someone away from employment at a moment’s notice, but you, nonetheless, can’t ask questions pertaining to them, nor can you ask whether the person was dishonorably discharged.
- Arrests. You can’t ask whether the applicant has an arrest history. You can, in some situations, ask about an interviewee’s conviction history, but there are rules regarding that.
- Nationality, Race, and Immigration Status. We’re not allowed to ask about a person’s nationality, race, or immigration status. This, again, seems common sense to many people, but they still get themselves into trouble. Perhaps the applicant has an accent. “Oh, I’ve been to that country. Is this where you’re from?” You think that it’s simple conversation, but you’re getting yourself into dangerous ground.
You also shouldn’t ask about a person’s mother tongue nor whether a person is a citizen of the United States. When you’re asking about citizenship, oftentimes you’re trying to find out whether the person is eligible to work in the United States. If that’s the true question you’re asking, then ask it more directly. Ask, “Are you eligible to work in the United States?” After you’ve hired the person, then you can get into more detail about why the person is able to work in the United States.
- Age (40+). Age is another area where we’re not allowed to ask questions. This is a protection for those of us on the older end of the spectrum. It’s okay to ask if an applicant is 18. But you can’t ask about a person’s age if they’re, say, older than 40. And you should not ask about a person’s retirement plans. If you are trying to find out whether someone’s going to be around long enough to finish a project or to be worth training, then you can ask about a person’s 5-year plans or 10-year plans. Just don’t mention the R word – retirement.
- Credit Background. In Washington, we’re not allowed to run credit history. And so if you have a business that you think is one in which you would need to know a person’s credit background, you might want to research whether or not you would fit into an exception.
If you fall into one of those exceptions, then you would still need to adhere to federal law. Federal law says that you would need to warn the applicant that he or she does not need to submit to the credit check. Federal law also says you need to provide a copy of the credit check to the person who you’re running it on. You also need to provide them with an official notice if you use the person’s credit background as basis for not hiring them.
- Polygraphs. We are not allowed to use polygraphs or lie detector tests, except in certain limited situations such as if you’re a law enforcement agency.
- Drug Testing. We are allowed to test applicants for drugs, but there are lots of rules that surround that. So, again, if you intend to do drug testing, this is an area for further research.
If you would like more information, I highly encourage you to go to our website and click on the Resources tab. There, you’ll find articles, guides, and videos on various legal topics.