Interviews--What Can Employers Ask?

Submitted by Federated Insurance

Question:
Can we ask how much a candidate was earning at his last job? What if we’ve heard that someone has a history of harassment (or making claims of harassment) -- can we inquire about that?

Answer:
As for questions specifically about prior compensation history, some states now prohibit such inquiries outright. Even where these questions are not outlawed, employers should consider whether they want to proceed with making prior salary history or expected income a relevant or necessary part of its hiring process, particularly given the current climate where several states have such laws and a number of others are considering them….

Still, so long as such employers are compliant with applicable anti-discrimination and pay equity laws, and inquiries are asked of all candidates (or at least all candidates for the same position), they arguably have discretion to make such determinations as to these types of inquiries, but again should consider the potential consequences outlined above before proceeding.

As for inquiries related to harassment claims with prior employers, we advise against such inquiries. Individuals who have exercised their right to file a harassment complaint or claim, whether with a prior or current employer, are protected against retaliation for having done so -- and not hiring someone due to their complaint history would arguably be construed as a retaliatory action.… If the employer makes such an inquiry and then the individual is not hired (or faces other adverse action after employment commences), the employer risks exposure to a retaliation claim, and the fact that the employer sought to ask such questions can substantially impair its ability to defend such a charge….

Asking candidates whether they were ever accused of workplace harassment (versus having complained of alleged harassment) is not, per se, an unlawful question, but employers should also be cautious before making such inquiries. This question must be asked of ALL candidates to avoid potential discrimination concerns. As well, the employer must consider that it may not secure accurate or complete information from an applicant, and oftentimes their prior employers will provide only a neutral reference, without verification either way. Finally, individuals who are alleged to have engaged in harassment in the workplace are not necessarily “guilty” of the conduct of which they were accused…