Catherine Parker
Catherine Parker

Walking on HR eggshells

Before I joined my current company, I worked for a small firm in San Francisco where part of my role involved interviewing people to join our team. Before I was allowed to interview anyone though, I had to go through human resources training about the types of questions I was and was not allowed to ask potential candidates.

Questions to steer clear of included asking an applicant what their religious preferences are, whether or not they smoke, or whether they plan to have kids. This made sense to me, since these facts have nothing to do with whether that person could have performed the job or not. But as I read further, some questions on the “forbidden” list absolutely stumped me, since they seemed so innocent. Left to my own devices, I’d probably ask some of these no-no questions within the first five minutes of meeting someone:

“That’s such a beautiful engagement ring! When are you getting married?” (Not allowed)

“You’ve got such an unusual accent. Where are you from?” (Not allowed)

“Wow, I know how hard it is to work here as a foreigner. I’m on a South African passport. So you’re from X — are you on a visa or are you a US citizen?” (Not allowed)

I’d ask the last two questions in particular because I am interested in how other non-citizens are able to work here. More than this though, I think the best way to find out if someone is the right fit for a company or not is through small talk; those off-the-cuff conversations that happen between “official” interview questions and that go a long way towards revealing someone’s true personality. This was especially important in my small company, in which there weren’t multiple departments to move around in if personality clashes arose. Armed with my list of illegal questions however, I found it difficult to have an easy conversation for fear of asking the wrong thing.

To clarify, it’s not that it’s illegal to ask these questions; it is only illegal if you’re found to have made a hiring decision that discriminates based on their answers. The issue of protecting minority rights is so inflammatory in the US, however, that everyone is walking on eggshells, so what used to be considered a perfectly acceptable question just isn’t anymore. Even though the concept of affirmative action has been around in the US for almost 50 years, people are still acutely sensitive to being seen as discriminatory. Added to this is the fact that this is a sue-happy country, so there’s a huge fear of being slapped with a lawsuit if someone is not hired. Many companies here won’t even follow up with a candidate who lists their date of birth or nationality on their CV, for fear of it blowing up in their faces later on if that person doesn’t get the job.

I now realise why when I first interviewed for a job here I was not asked where I was from. I thought it was strange, but then I reasoned that San Francisco must be like London, where people are extremely familiar with South African accents. I now realise that it wasn’t that no one wondered where I was from — it was simply that they weren’t allowed to ask.

In some ways, I can understand the reasons for avoiding these kinds of questions. But the paranoia of potential lawsuits here has led companies to exercise such extreme caution that, at least in my experience anyway, the interview ends up feeling forced. This makes it harder for the person who is hiring to get a genuine feel for who this person really is and whether they’d be right for the company or not. Also, on a more basic level, if you can’t ask someone where they are from anymore, what does that say about this country’s fundamental human-to-human interaction?

The informal “chat” interview as we know it is fading fast here; it’s a relic of a more trusting age before Stella Liebeck decided to sue McDonalds when she burned herself with their coffee. It’s a pity though, because although there will always be exceptions, in general I think that if you give employees the benefit of the doubt that they’ll make the right hiring decision, the company will be more efficient. And in the long run, that’s of more benefit to everyone involved.

  • Alisdair Budd

    A few months ago several members of my local charitable group went and took a trip to America, to support an African American man with a white British wife whom we had met when he was working at an East Anglian USAAF airbase.

    His local chapter of the club is predominantly white in a 30% black state.

    So, all in all, the laws in the USA dont work and practices are still subverted.

    If you want to do something then you have to let people decide for themselves and also be prepared to pay the airfare to the USA to make a stand for a friend and be counted.

    For so much as a tin rattling charity group, let alone a business.

    And REv Martin Luthor King started out by boycotting those businesses who made people of different colours sit in different places, let alone employ only one colour.

  • http://ridwanlaher.blogspot.com/ Ridwan

    After living and working in the US for 2 decades I returned and interviewed with a local university for an academic position.

    So there I sat very nervous awaiting the first question from the Dean who chaired the search committee.

    He leaned back in his chair, looked at me and said: “Tell me, are you married?”

    I was shocked. What the hell did my marital status have to do with the position?

    I had served on many search committees in the US and even chaired a few, asking personal questions that do not pertain to the position are prohibited by law.

    And rightly so. A search can be seriously jeopardized, even sidelined, if questions about age, sexual orientation, religion, marital status, race/ethnicity are raised by search members.

    Affirmative Action criteria are not allowed for consideration until the decision between final candidates is made. Only then is gender and race taken into consideration based on what a candidate has freely provided.

    I liked that system. It seemed more objective and it also allowed the candidate to be prepared for questions that pertained to qualifications and experience, etc.

    The system is not perfect. Often decisions hinge on powerful members of a committee and their preferences, which sometimes includes personal criteria can influence outcomes.

    Still, asking anyone are you married, what is your religion, how old are you, etc, should be no-go areas unless the candidate offers such information freely.

    I understand that it would be nice to be less formal, more spontaneous even, but a structured interview, backed up by fairness and equity laws, makes for a more fair process.

    We need more of that here to protect candidates from rampant ageism, sexism, homophobia, racism, classism, xenephobia, among others.

  • Calliope

    Commenting on: I think the best way to find out if someone is the right fit for a company or not is through small talk.

    The problem is that small talk is also a way of discriminating against those who are “other”. Reveal your homosexuality, or your abiding passion for afghan knitting, and your chances of getting the job plummet.

    I sat on a selection panel that interviewed amongst others a very uptight looking interviewee. When he answered the question about his hobbies(which was very clearly disallowed by the institution’s guidelines, there was a collective sense of relief throughout the group. His hobby was re-enacting battles with miniatures. It tied in with his very upright military bearing, and sealed his fate, to land on the “NO” list.

  • Bernie Kempen

    Hmmm. I am a Saffa employer practicing family law in the East Bay. My understanding is that I have a duty under the law to verify the legal status of a job applicant. Are you saying that I can only verify status after the hiring decision is made? That makes no sense to me.

  • Rory Short

    The ability to classify things is a natural and extremely useful human capability. On the other hand the misuse of classifications seems to be an endemic human problem.

    America it seems is trying to prevent, by means of legislation, this misuse of classifications when vetting job applicants. As you say Sue this legislative approach is turning out to be counter productive in many ways.

    Perhaps this is happening because the current HR legislation in its application is like bolting the stable door after the horse has gone so that iswhy employers stay away from questions that could lead to litigation.

    I wonder if it would not be better if the kegislation just made it a punishable offence if an employer could be proved to have misused a classification?

  • Kwena Mokgohloa

    USA laws are fair, I mean it doesn’t really make sense to ask someone if is from Cape Town or Pretoria as that can lead to be discriminate of the candidate due to where he come from. In SA it even matters what Church you go to, what’s that got to do with the value of work you can produce for the company? Questions like are you married or not are just useless. Let me say I’m interviewing myself and ask a question to two candidates if they are Kaizer Chiefs fan or Pirates fan immediately a Kaizer Chiefs fan gets a slight advantage as is someone I can relate to and without even thinking about it that can happen. But let’s be fair is being Chiefs fan or being Pirates going to affect the quality of job someone is going to provide to company? Nor being Bulls fan or Sharks is not going to determine what one can offer in terms of productivity

  • OneFlew

    It’s much the same in much of Europe.

    Interviewers therefore don’t ask forbidden questions and then appoint the people they were going to appoint anyway; those with whom rapport and a “one of us” sense is best established.

    You can’t legislate against human nature.

    In some cases the nanny legislation isn’t only ineffective, it is positively damaging. If discrimination on the basis of say race or gender are proven then employment claims are potentially uncapped. Some of the high settlements in London in recent years were based on this.

    The result? Some employers are wary of exposing themselves to the risk of uncapped claims and therefore bias their hiring decisions accordingly. It’s always easy to find a pretext for not hiring a particular candidate at the recruitment stage.

  • Alisdair Budd

    Why would playing with toy soldiers be a “no”?

    These days war games are highly complex rule based systems that can be palyed by sometimes hundreds of players on the Internet.

    They are highly social, and require a certain level of quick decision making, ability to learn, ability to comprehend complex regulations in real ime and mos have a form of mercantile bargaining system.

    Would have thought you needed them in most businesses?

    Or is this a prejudiced stereotype against people? Rather like the one that all programmers are geeks and the only (male) people allowed to have long hair are the systems administrators since no-one else knows how to work the computers?

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  • Erica

    If you think giving companies the benefit of the doubt will help companies in “making the right decisions” you are disillusioned. Unfortunately, in the United States inherent racist practices are still in place systematically (as they still are in South Africa)and even more so on a more micro scale. Therfore the programs and policies in place for example in hiring are a protective factor. We also don’t ask people “are you racist/how do you feel about other genders/do you think that people of color are worthy of fair treatment”, etc, when hiring them. Therefore, no one knows that ideologies of those people like you, who are making the hiring decisions and in this country it is far from the exception to have a person of color or of a different nationality NOT be hired for a position that they are more than qualified to take. It sounds to me that you live in a world of idealism, which is wonderful if you are comfortable there. However, for people of color in this country, this is just not their reality.