Asking the Right Questions
Bread & Butter, June 2000

You're the manager of a restaurant and bar. You're interviewing people for a server's position, and know that state law requires servers to be at least 21 years old to serve alcohol. However, directly asking the applicants their age could land you and your restaurant in legal hot water.

"Asking the wrong kinds of questions could leave you vulnerable to bias charges under several federal and state antidiscrimination laws," says Peter Kilgore, legal counsel for the National Restaurant Association.

"You should ask questions that are relevant only to the job and not request any extraneous information," says Kilgore. Attorney Robert Palmer, a professor at the Collins School of Hospitality Management at California State Polytechnic University in Pomona, California, agrees. "Every question that you ask on a written application or during a verbal interview must be job-related," he says.

Rewording the question about age to ask, "Are you at least 21 years of age?" would gather the pertinent information and negate potential age-discrimination suits. The following examples show how to avoid asking the wrong questions, and still get the facts you need.

• Family status. Do not ask an applicant his or her marital status, number of children, or child-care arrangements. Instead, identify the job requirements and then ask if he or she has any responsibilities that conflict with the requirements.

• Disabilities. Show an applicant the job description and ask if he or she is able to perform the essential functions of the job with or without reasonable accommodation. Do not inquire as to what accommodation—if any—would be needed, until after a job offer is accepted.

• Citizenship or nationality. Do not ask if an applicant is a U.S. citizen or where he or she was born. Instead, ask the applicant to show proof of his or her eligibility to work in the United States and to complete the required I-9 forms.

• Arrests or convictions. Do not ask if an applicant has ever been arrested. However, you can inquire if an applicant has ever been convicted of a criminal offense, other than a minor traffic violation, particularly if a job involves handling money. If the applicant answers yes, then ask for a full explanation.

• Transportation. Do not ask if an applicant has a car. Instead, ask if an applicant has reliable transportation to work.

Sometimes, despite carefully crafted questions, an applicant will volunteer information about his or her life that could be grounds for a discrimination suit. "The best defense is to not acknowledge that you heard it," advises Palmer.

For assistance in crafting your interview questions, contact the National Restaurant Association at (800) 424-5156, the Equal Employment Opportunity Commission at (202) 663-4900 or www.eeoc.gov, or your state fair-employment-practices agency.