Best practices for interviewing applicants for a job to avoid lawsuits

Hiring the right talent for your business is important, but conducting interviews appropriately to comply with state and federal laws is crucial. There are laws that are enforced by the U.S. Equal Employment Opportunity Commission (EEOC) to protect applicants for any potential adverse effects that may occur during and after an interview, regardless of whether they get the job or not. Discrimination against a person’s particular race, color, religion, sex, or national origin, age or disability is prohibited by state and federal laws and can provoke a class action suit if the managers you have interviewing don’t know the rules.

I am going to walk you through the process of interviewing applicants from start to finish and highlight the areas of awareness that will keep you out of hot water.

Job Advertisements

The compliance for hiring new employees begins with the job posting or advertisement. The EEOC states that it is illegal for an employer to publish a job advertisement that shows a preference or may discourage someone from applying for a job because of his or her race, color, religion, sex, national origin, age or disability. Asking for only “females” or “college students” to apply obviously will discourage men and people over 40 from applying and may violate the discrimination law.


When you advertise the job openings for your business, make sure to attract a diversity of people. It is illegal for an employer to recruit new employees in a way that discriminates against them because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. If you advertise in a mostly Hispanic area and all new hires are Hispanic, it may be viewed as discrimination against other nationalities.


Anyone who asks for an application must be allowed to apply – otherwise, it can be viewed as discrimination. An employer may not refuse to give an application to a person based on stereotypes and assumptions about a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age, disability or genetic information. If a job applicant has a disability and needs an accommodation (such as a sign language interpreter) to apply for the job, you are required to provide the accommodation, so long as it does not cause significant difficulty or expense.

Background Checks

The Fair Credit Reporting Act (FCRA) is clear on what you can and cannot do as part of a background check, but there are an array of other laws that come into effect, depending on your state and region. In some states, it’s fine to use credit and criminal background checks for any employee, but in others, you can only perform these checks for specific types of employees. Make sure to check your specific state and region compliance laws before requesting a background check.

Employment References

It’s best practice to take the time to confirm the details on an application by calling the past employers and contact the personal references to get the best insight into the person applying for the job. If an employee was fired from a previous employer, the company could tell you and give you the reason for the termination as long as it is factual and accurate. It is illegal to for opinions or questions that relate to any of the protected classes in the discrimination law. Companies are usually careful about what information they provide while confirming employment or checking references to prevent potential defamation (which is slander or libel) lawsuits from former employees.

Employer Interview Questions

It’s easy to get comfortable during an interview conversation when you are attempting to get to know someone, but it is crucial to avoid asking questions that relate to classes that are protected by discrimination laws. For example the marital status of the applicant, whether they have children or intend to have children, their age or any questions that can pinpoint their age, their citizenship status or any questions concerning their drug or alcohol use. The applicant may raise questions related to the above areas during a job interview, and you may discuss these topics to the extent necessary to answer the applicant’s questions. However, it’s better to avoid these topics to prevent the misperception of your attempt to gain discriminatory information about the applicant.

Hiring Process

During the hiring process, avoid making comments to the applicant or new employee, that can be misconstrued as a promise that results as an “implied contract,” under the law. For example, conversations about stock options, pay increases, or promotions may be interpreted by the employee as a done deal and a deciding factor for why they accepted the job offer. Once hired, if these promises are not kept, you can be said to have breached the implied contract, and be responsible to the employee for any damages they incurred by accepting the job with that perception.


In conclusion, from job posting to onboarding, all prospective employees have rights, including anti-discrimination laws and the law of “implied contracts.” Make sure to train all managers and execs who will be facilitating interviews on EEO laws and how to conduct an appropriate interview, so you follow the best practices and hire the best talent.

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