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4 Best Practices for Legally Defensible Interviews

December 19, 2017

If we were playing a game to see which part of the hiring process would result in the most litigation, the interview would easily take the cake! Poorly structured interviews are more likely to result in litigation than other aspects of the hiring process, including cognitive ability and personality assessments. However, if done correctly and in a legally defensible manner, interviews can be great tools used to determine which candidates have the necessary knowledge, skills, and abilities to be successful on the job.

Below are four suggestions to establish legally defensible interviews:

Be Consistent

A key component of legally defensible interviews is consistency. Specifically, a structured interview format should be used. Each candidate should be asked questions that measure the same competencies required for success. Furthermore, there should be a standardized process for evaluating candidates. Each candidate should be evaluated based on the same standards. In order to develop standardized evaluations, Select International recommends creating rating scales with behavioral anchors. 

Related: Are Structured Interviews Ever A Bad Idea?

Ask Job Relevant Questions

We’ve all heard stories about people getting asked ridiculous questions during their interview. For example, if you had to be a type of fruit, what type of fruit would you be? Admittedly, these types of questions can be funny, and the candidate’s answers are sure to be entertaining, but they will likely not hold up in court. When determining what questions to ask a candidate, it is critical that they be related to the job in question, not only for legality reasons but to ensure you’re actually measuring the necessary knowledge, skills, and abilities needed to be successful on the job. The best way to determine what job relevant questions should be asked is to perform a job analysis. A job analysis examines a job’s functions and responsibilities to determine what competencies are needed for a person to be successful in the role. Once a job analysis has been completed, interview questions can be developed based on the identified competencies.

Avoid Asking Questions about Protected Classes

Asking questions related to an applicant’s race, color, national origin, gender, age, religion, or disability is one of the quickest ways to get yourself into legal trouble. You should also be aware of any state or local laws which may be applicable to your organization. If you are uncertain if a question is acceptable, reach out to your legal department. Also, just in case you’ve already forgotten, I’ll say it again - interview questions should always be based on job requirements (if you need a refresher on this concept, please revert to suggestion 2). 

Read more: 10 Illegal Interview Questions Hiring Managers Are Asking

Train the Interviewers

It only takes one hiring manager to ask an inappropriate question to get an organization into legal trouble. Therefore, it is important to not only train interviews on what questions not to ask, but also to adequately train interviewers on how to ask questions in a way that elicits in depth responses from the candidate and on how to make accurate ratings. Interviewing is an acquired skill, and hiring managers need the training and practice to master the craft.

It’s true that interviews are susceptible to litigation. However, there are steps that hiring managers and organizations can do to greatly reduce that vulnerability. By interviewing in a consistent and structured manner, asking only job relevant questions, avoiding questions related to protected classes, and training the interviewers, organizations can create a legally defensible interview process. Also, as an added bonus, following these suggestions will not only result in a more legally defensible interview, but it will also increase its accuracy and validity. Two birds, one stone!

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Cassandra Walter Cassandra Walter is a Consulting Associate located at PSI's Pittsburgh office. She holds a master's degree in Industrial Organizational Psychology. She works with clients across many different industries, including manufacturing, retail, customer service, and healthcare. Her areas of expertise include providing training and support for PSI’s applicant tracking system, as well as assisting clients with requests and questions regarding tools and processes.