Ethical & Legal Issues in the Interview Process

by Eric Feigenbaum; Updated September 26, 2017
Employers must consider diverse applicants.

When interviewing candidates, employers can wade through the maze of legal and ethical concerns using one simple principle: fairness. The many state and federal laws related to hiring, and particularly to discrimination in hiring, are all aimed at maintaining fairness and opportunity. The ethics of hiring demand the same. Employers striving to do the right thing must take care to treat applicants equally and give them each an opportunity for consideration.

Diversity

Both ethics and the law require employers to search for the best candidate to fill a position. Hiring interviews should ignore such factors as gender, race, national origin, religion, ethnicity, or, in accordance with specific guidelines, age. The Americans with Disabilities Act also made it unlawful to discriminate against a qualified person with a disability, as long as the candidate can perform the essential duties of the job. Although there is no federal mandate about sexual orientation, some states have statutes against discrimination on that basis. In all cases except sexual orientation, employers who demonstrate biased hiring practices are subject to sanctions from the federal Equal Employment Opportunity Commission and prosecution or suit under state and federal laws.

Standardization

Smart employers design and document their hiring processes to ensure and prove fairness and equality. Standardized applications and interview questions help ensure candidates all receive the same treatment and a fair basis of comparison. Additionally, interviewers must take care not to make notes or give emphasis of any kind based on candidate appearance or background.

Nepotism

Nepotism involves giving preference for employment opportunities and promotion to family members. Although occasionally family members or business leaders or owners are well qualified for a job, family members hiring family members constitutes a conflict of interest. Most importantly, it undercuts fairness in hiring. Federal and state statutes prohibit nepotism in public agencies, but laws do not prohibit the practice in private companies. Still, private employers must be careful of nepotism. Employees passed over for promotion in favor of a family member may file civil suits. Nepotism can be demoralizing because it undercuts employees' hopes that hard work and accomplishment can lead to greater success.

Background Investigations

To protect themselves and their customers, many organizations perform background investigations of prospective candidates. Typically, these encompass criminal and employment history reports, education, social security number and professional license verification, and sometimes credit checks. Naturally, many people feel uneasy about having strangers look into their backgrounds. Employers should refrain from running background reports until the final stages of the selection process, when they have extended conditional offers of employment. When running credit reports, companies in some states, such as Massachusetts and Maine, are required to notify candidates in advance. The federal Fairness in Credit Reporting Act requires employers to furnish candidates with free copies of their credit reports if they reject anyone on the basis of their credit.

About the Author

Eric Feigenbaum started his career in print journalism, becoming editor-in-chief of "The Daily" of the University of Washington during college and afterward working at two major newspapers. He later did many print and Web projects including re-brandings for major companies and catalog production.

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