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Monday, April 09, 2007

A Really Great and Terrible Question

Dear Evil HR Lady,

At my college, we've been using a standard interview question for several years now: "Is there anything in your past that would be embarrassing to the college if it became public after you were hired here?" I mentioned that on my blog, and got verbally pistol-whipped in the comments by people suggesting that this is way too broad, probably illegal, and presumably Orwellian.

Admittedly, it's broader than "have you ever been convicted of a felony?," but that's because I'd also want to know about certain misdemeanors, sexual harassment charges, etc.

Is this question too broad? If it is, is there another version that would pass muster in court but still tell us what we'd need to know?


Dean Dad

Dear Dean Dad,

What an absolutely lovely question. (As a reminder to all my readers, I am NOT a lawyer, nor do I play one on the internet.) I think it's brilliant, but I'm afraid, professionally, I'd have to advise against it. (Although I'm tempted to use it myself.)

Why? Not because the question itself would be illegal, it's that what do you do with the information they give you? What if I answered, "I was arrested for indecent exposure when I ran naked through the 2004 Democratic Convention. I was protesting boring candidates!" Now, you can guess that I not only have a clothing problem (of legitimate concern to your college) and that I didn't support the Democratic candidate. Now, I don't get the job because having seen me in my interview suit, you have no desire to see me streak across campus. (I'm fine from the neck up and knees down, but everything else should be covered at all times.) But, I say you didn't hire me because we all know colleges are run by liberals and I clearly don't have those views. You are in the awkward position of having to defend why you didn't consider information you obviously knew.

Of course, it's very easy to end up with information you don't want to know. A candidate's list of publications? Christianity Today, Working Mother, Guns and Ammo, or The Open Closet? Now you know or have reason to know additional things about my political views, sexual orientation, parental status, religion and views on the 2nd amendment. The burden of proof is going to end up falling on you to prove that you DIDN'T discriminate.

You mentioned you wanted to know about "certain misdemeanors, sexual harrassment charges" etc. Misdemeanors you can ask about--I would have that and felonies--on your application that everyone fills out. (Don't make the common mistake of not having your professional candidates fill out an application. Everyone gets an application--the same one--whether they are applying for a job in the cafeteria or as a professor.)

Charges, however, can be problematic. You cannot consider an arrest someone had--only a conviction. Harrassment doesn't usually fall under criminal law, though, so there would rarely be a "conviction," so to speak. Instead? "Why did you leave [previous job]?" Or "if I called your previous boss for a reference, what would she say?"

Like I said, I think it's a brilliant question. It elicits answers you couldn't get otherwise. And while I don't think it's patently illegal (remember--I'm not a lawyer, and my lawyer brother comes to me for HR advice, so he's worthless in this category), it has the potential to cause you problems. An EEO complaint (as one of your commentors threatened he would do) can cause headaches you don't want or need.

Of course, I think everybody should just grow up and not go crying to the government when they are offended. But, then again, I blog anonymously so that no one goes crying to my boss.

I'd love to hear some of the responses.

Note: For some reason the comments have disappeared from this post. I apologize for that, but I don't know how to get them back.

Note 2: It looks like I fixed it!


Mike Doughty said...

Let me preface this by saying that I'm not a lawyer (although I've spent so much time on legal issues and with lawyers that I probably should have become one), and that I'd highly recommend the Dean get an opinion from a GOOD employment lawyer.

With that disclaimer, here's my opinion. Nothwithstanding the fact that I too love the question, I wouldn't use it. It's way too broad, nebulous, and open to interpretation by both the interviewer and the candidate. As the Evil HR Lady says, even if it's not illegal to ask it, there's not much that IS legal that you can do with the information. You can't eliminate a candidate on the basis of an arrest or charge, only on a conviction, and only then if the conviction has some bearing on the job you're hiring for. Example: you can eliminate someone who has a DUI conviction from a job requiring driving, but not a job that doesn't. This gets tricky. If you elicit information that you can't use anyway, you open the door to charges that you DID use that information to eliminate a candidate. Also, how long ago did it happen? What's "embarassing"? Whose standards are you going to use?

My advice is to stick to job related questions in the interview, have your application and authorization to release information cover convictions, incarceration, etc., and do your due diligence with the most extensive background checks you can legally perform. Then make your decision based on the requirements of the job. Also, before you start your search, look at your job descriptions to make sure they include ALL the requirements of the job. Sometimes that can help in narrowing your field of candidates.

And guess what? Even with all that, you're going to make mistakes in hiring, because, as you know, people lie in interviews and on applications.

Mike Doughty

Kris said...

While you may cringe and wonder if the question is illegal, don't be afraid to ask for negative information during an interview - just frame it as part of a dimension you normally pursue during the interview. For example, decision making is a relavant dimension to pursue during a behavioral interview. The positive question for that dimension (which you should use) would be something like, "Tell me about complex decision you had to make in your last job that turned out well". Once into the dialogue, you probe their decision making process as they work through the problem...

You should ask the same type of question, but seek negative information - "Tell me about a complex decision you had to make in your last job that didn't turn out positive". Again, you are looking for the decision making process and as part of the journey, may end up with some type of hideous outcome. The protection would lie in the fact you were asking a behavioral question, which implies that 90% of your time on the question is probing the actions they took given a certain situation, not the outcome, which gives you some legal protection vs. the broad "give me the bad stuff in the closet" approach.

Use the negatvie version of behavioral questions as much as you can. Good info follows..

PS - If you get negative info you are concerned about, a lot of how that's perceived by the candidate is in the rationale provided when you tell him/her they didn't get the job. Hide from the conversation, and they will point to the negative info as the reason. Do a good job with a broader range of feedback and laser in on 2-3 things the selected candidate had that they did not, and you have effectively boxed in the risk...


apu said...

In a litigation-loving society, I think its asking for more than you can handle...

Anonymous said...

don't blame the litegation society for people's hackles raising at that question, employers shouldn't have the right to control us outside of the work environment (whatever that is).

As people have pointed out here at at DD's blog, the problem is what DD wanted to do with the question.

DD started asking the questtion because a candidate had an unrevealed felony, something the college considered important but had no information on.

The solution to this kind of problem is not asking some vague, nebulous question which is totally contextual and depends on what both the interviewer and interviewee consider "embarrasing to the college" (as I and others pointed out at DD, what is embarrassing to the college totally depends on the environmental context. In some environments the fact that DD has a blog could be embarrasing to the college if it is ever revealed, consuming porn is embarrasing to the college if your in a fundamentalist environment).

DD solution should be to run the schools interview process by someone versed in employement law, and at the very least to have an application on which employees must reveal felonies and should agree to a credit check or some such thing.

I'm actually surprised that a question re felonies wasn't on DD's original list (every freaking application, includingacademic one's I've filled out have this question, hell for one TA job I had to take an "ethics test" [what would you do in x situation?] so that the school could assure themselves I knew how to behave).

- Anonymous who first raised a questtion re DD's question