How to Conduct A Job Interview Without Getting Sued

This is a guest post by Johanna Harris. Johanna has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book is USE PROTECTION: An Employee’s Guide to Advancement in the Workplace.

As a manager, one of your most important responsibilities is interviewing an applicant for an open job position. The key is to be probing and thorough and, at the same time, avoid any questions that could be interpreted as illegal or improper.

Not sure how to ask the question?

Sometimes managers ask illegal questions because they’re not sure how to acquire important information that they are in fact legally entitled to know. A manager may legitimately want to know whether an applicant can master all of the procedures required of the job. Unsure how to get at these qualifications, he asks the applicant how old he is – an illegal question. Or a manager may legitimately want to know whether an applicant is available to entertain clients in the evening. Similarly unsure how to address this issue, he asks her whether she has young children – again, an illegal question.

Four main areas to probe

During a job interview, there are four main areas you want to probe.

  1. Does the applicant have the skills that match the needs of the new job?
  2. Can the applicant be available at the times and places you need him?
  3. Does the applicant possess the core attributes that would make any person a valuable employee?
  4. Does the applicant fit within the culture of your organization?


To ask effective, legally permissible questions about a prospective employee’s skills, you need to do some homework. That means learning in detail the duties of the job, as well as the level of skill required to perform those duties. It also means prioritizing job responsibilities, as some duties may be more important than others. The formal job description is a good place to start, but it certainly is not the end. Talk to employees who are successful in the same position. Consult with users of the services provided by the new job. Check out industry descriptions of the job, too

Once you know exactly what the job requires, you can craft pointed questions to the applicant that relate directly to the job requirements. That includes her previous work or projects. “How does your experience in the design of user interfaces for retail store management carry over to the healthcare field?” “How does your experience in selling heavy equipment to agribusiness carry over to marketing pharmaceuticals?” There is nothing illegal about giving the applicant an assignment – to be completed either at the interview or at home – that shows whether he indeed has the specific skills required of the new job.

While your focus is on the specific responsibilities of the job, you can still ask more general skill-related questions that help you get a feel for the applicant’s attitudes toward work and interactions with peers. “Have you improved at your current job?” “What skills or experience do you still lack?” “How do you approach your work?”


An employer has the right to know whether the applicant can be available at the times and places necessary to complete the job. Your task as manager is first to determine exactly what kinds of availability the job requires and then to ask about them up front. “Can you work 15 hours of overtime each week?” “Can you be available to entertain clients approximately twice each month?” “Can you travel out of the city for monthly sales conferences?” “Can you fly to California in March of every year for the annual sales summit?” These pointed questions put the applicant on notice. If he cannot meet these availability standards, he is at risk of being fired. Putting these requirements up front can also give him a sense of comfort that he knows exactly what will be expected of him.

Mobility may be an important prerequisite for advancement in your company. If so, then you should explain that up front, too. You are entitled to inquire, “Are you prepared to transfer from our branch office to the national headquarters?” Even if you believe that applicants with children are less mobile, you cannot ask him a question such as, “So, what arrangements have you made for child care?”

If the new job will require the applicant to entertain clients, you are permitted to ask her questions about her interests outside of work. Your goal here is to determine whether he can talk engagingly about topics other than the job and thus whether he will get along well with clients. You’re trying to find out whether he has a chip on his shoulder, whether he gives sarcastic responses or tells inappropriate jokes. Let’s say that you ask him, “So, what do you do when you’re not auditing financial reports?” He might respond, “I work out twice daily.” It is perfectly legal to keep the conversation going with, “VWXYZ Gym just happens to have a branch right here in our building. Would that fit with you exercise goals?” If instead she responds, “I am devoutly religious and pray twice daily,” you can acknowledge her comment with something like, “That’s interesting,” and then move on. Make sure that do not base your hiring decision on the applicant’s religiosity.


Core attributes

There is a set of core attributes that are universally valued in all jobs: flexibility, independence, efficient time management, problem-solving ability, motivation to work hard, responsiveness in a crisis, capacity for teamwork, and ability to take instructions. Obviously, not every job will require every one of these attributes to the same degree. But you can save your company the wasted effort in training and the expense of firing an employee if you decide in advance which characteristics are most important and craft your questions to hone in on them.

When it comes to flexibility, you could ask, “So, give me an example of a project that did not turn out the way you originally planned.” “How were you able to change course?” “Was anyone to blame for the unexpected turn of events?”

If you’re interested in independence, you could ask, “Can you tell me about some managers that you work well with?” “Why did you work well with them?” “How often have you asked your manager for guidance?” “Why did you ask for guidance?” “Have you ever been in a situation where your manager looked over your shoulder way too often?” “How did you handle it?”

To assess the applicant’s time management skills, you could ask, “How do you make sure that you get all the work done on time?” “Have you ever been in a situation where you were way behind in your work?” “How did you handle it?” “Are you a perfectionist?” “How do you know when it’s time to move on?”

To focus on problem solving skills, try these questions: “What kinds of problems did you face in your last position?” “How did you solve them?” “Did you have to get help from someone other than your supervisor?” “How did you manage to get help outside the direct chain of command?”

To determine whether the applicant is hardworking, your questions could include: “How many hours did you normally work in your last job?” “Did you ever burn out?” “Did you take all of the vacation you were entitled to?”

Finally, when it comes to the applicant’s work style, including responsiveness in a crisis, capacity for teamwork, and ability to take instructions, you might ask: “So, do you work with others in your current job?” “Have you run into challenges when working with others?”


Every organization has a culture, and your company is no exception. You want to hire an employee who will be comfortable your company’s culture.

Some companies expect employees to participate in all sorts of social and team-building activities during and after work. Some companies value politeness and civility. Others don’t care. Some companies have lots of meetings. Others think meetings are a waste of time. Some companies give a lot of feedback to employees. Others give none. Some companies reward their employees only with money. Others offer a myriad of non-monetary rewards. Some companies actively encourage employee input to improve workplace operations. Others frown on employees who make too many suggestions. Some companies have formal mentoring systems. Others believe you learn on the job from your boss.

If some of these issues are important in your company, it is appropriate to ask the applicant how he feels about them. “Do you have lots of regular meetings at your current job, or do you think meetings are a waste of time?” “Can you give me an example where you offered concrete suggestions to your manager about improving your group’s performance?” You could frame the issue more generally: “What kind of work environment do you believe you would flourish in?” It is likewise appropriate to ask the applicant what motivates her. “So, what makes you come to work every day?”

There are many other legally permissible questions that allow you to assess the applicant’s compatibility with your organization’s culture. “Why do you want this particular job?” “What is it about this company that makes it a desirable place for you to work?” “Have you ever faced a situation where you were asked to do something that you believed was wrong from business, ethical or legal point of view?” “How did you handle it?”

Screening out potentially violent employees

You are entitled to determine whether an applicant has anger management issues or other character traits that indicate he may become violent in the workplace. There are many ways to approach this issue. “How do you deal with stress?” “Have you had co-workers who were incompetent or annoying?” “How did you handle it?” “Have you ever had a boss or a client who was unfair?” “How did you handle that?” “Can you tell me about some of your role models inside or outside of work?” “Why do you admire him (or her)?”

At the end of the day

The more that you focus on job attributes that really matter, the more you will avoid inappropriate or illegal questions. Try to elicit concrete factual answers and not just vague generalities. That will help you to ensure that the applicant isn’t simply telling you what he thinks you want to hear. Don’t be hesitant to form your own opinions about the applicant. But make sure that these opinions are based objectively on things the applicant said or on her specific qualifications, and not simply hunches or vague feelings of discomfort.

Multiple interviews are a good idea. That includes job interviews with more than one interviewer present. That will help to neutralize the biases and preconceptions that each individual interviewer brings to the encounter.

At the end of the day, one critical message stands out. Be probing and thorough.

All too often managers take short cuts and end up paying dearly for their mistakes.

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