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Illegal Sales Interview QuestionsYour team has found what look like some great candidates for your open sales position. You have planned your interview questions to help filter out the mediocre and find the top performers. You have reviewed your compensation package and are certain it is competitive. You feel you are ready to hire the company’s next super star. STOP.

Before you sit down at your desk to interview candidates, make a stop at HR, or you may be risking a law suit. Many questions that seem innocuous can land you in legal hot water, and the laws may have shifted without your realization. It is part of HR’s job to keep up on changes in employment law, so be sure you ask them to review your intended questions before sitting down with candidates.

Here are some questions and issues you may want to discuss with HR or your organization’s legal department before diving into your interview process:

Age: Most sales managers are aware they should not ask directly about age, but may not be aware they can violate age discrimination laws with offhand comments that may indirectly ask the candidate to expound upon or reveal their age.

  • Illegal: Wow, you look much too young to have been a top sales performer at such a large organization!
  • Legal: How long did you work for XYZ Company, and can you tell me more about your accomplishments there? How many deals were you able to close, who are your primary buyers; do they reside in the C-suite?

Gender-specific questions and questions about marital status and family: It is illegal to discriminate based on gender. It is crucial that you don’t ask any question that could be interpreted to be digging for information about the candidate’s marital status, spouse or children.

  • Illegal: Do you have children? Will you be able to travel for business and work the long hours this job requires or do you have to be home by 5:00 to take care of your children?
  • Legal: Your sales territory would include five states, so you will be on the road quite a bit, and that will include some overnight stays. Since you will be busy with sales calls during the day, you may have to do some paperwork nights and weekends. Would you be willing and able to work these kinds of hours and spend some nights away from home?

Sexual orientation: Questions about sexual orientation are illegal in California and some other places. There is no reason to inquire about this at all.

Country of origin: It is illegal to discriminate based on country of origin. You cannot ask about nationality or native tongue, but you can ask candidates to verify they can work legally in the country. You can also ask what languages they can speak or write fluently – if that is critical to the job. HR should have attorney-approved forms regarding legal-to-work verification. It is best just to let HR verify these forms and supporting documentation.

  • Illegal: We have a position opening up in Mexico City. Are you from Mexico? Is Spanish your first language?
  • Legal: We have a position opening up in Mexico City. Are you fluent in Spanish?

Ethnicity and race: It is illegal to inquire about either ethnicity or race, even if comments or questions seem complimentary.

  • Illegal: Since you are African American, you would do well in this sales position, because there are many African American prospects in the territory.
  • Legal: There is really no legal question or comment about ethnicity and race.

Religion: Don’t ask about religion with the reasoning that you are trying to find out what holidays the candidate will want to take off or for any other reason.

  • Illegal: Are you Jewish? Will you want Hanukkah and Passover off? It would be great if you were willing to cover for some of the other client service representatives around Christmas.
  • Legal: The company gives the following holidays off: [List them.] You also can take [#] of personal days per year. (Check with HR about this one, as it is possible you may have to give important religious holidays off in certain jurisdictions.)

Disability: You cannot ask a question that would cause the candidate to tell you about a health issue or disability.

  • Illegal: We are looking for real go getters who can take a tough schedule on the road, because this sales territory is quite large. How many days were you sick last year?
  • Legal: The schedule for this job can sometimes be grueling. The territory is quite large, and it requires long hours and a lot of time on the road. Can you handle being on the road 50% of the time?

Physical attributes: You cannot comment on height, weight or other physical attributes.

  • Illegal: With your good looks, you shouldn’t have any trouble getting in the door to pitch new prospects.
  • Legal: Tell me about your experience in getting through the gatekeepers in order to pitch new prospects.

Affiliations: It is illegal to ask generally about clubs and affiliations.

  • Illegal: What clubs do you belong to and what are your political affiliations?
  • Legal: Do you want to discuss any professional organizations you think are relevant to helping you perform your job?

Military status: It is best to just avoid any comment on their military background.

  • Illegal: It is important that our clients can reach you, and that they feel their rep is available to them. I see you were in the military. Are you still in the reserves? Might you be called away from work to serve?
  • Illegal: What kind of discharge did you receive?
  • Legal: Do you have any potential plans that would require you to take time away from your field position?

Arrests: It is illegal to ask if a person has ever been arrested, because someone could have been arrested and then exonerated.

  • Illegal: We really need someone we can trust in this positon, because you will have access to confidential company and product information as well as certain financial accounts. Have you ever been arrested?
  • Legal: It is legal to ask about felony convictions, and factors about the felony can be considered when making a hiring decision. There is a fine line here when weighing these factors, and it is better to avoid this issue during your interview and just leave gathering to HR. HR will likely use attorney-approved forms. Of course, HR can also be helpful in performing background checks.

Financial information: It is illegal to ask if a candidate has ever declared bankruptcy, but it is legal to run a credit check.

  • Illegal: We want high-powered salespeople who know how to make money. We are looking for winners. Have you ever declared bankruptcy?
  • Legal: Do not ask about financial background during an interview. Rather, your HR department can ask the candidate to sign a form giving consent to a check credit. Many U.S. states allow employers to use credit history as a factor in hiring decisions, but in some states there are restrictions.

Special Note on asking about earnings: It is a common practice to evaluate a sales person’s level of success by looking a their history of commission earnings and in most jurisdictions it is legal to ask a candidate to prove their income in one way or another. Once you have had your interview questions sanctioned by the HR department, if you need to deviate a bit during the interview, stick to the straight and narrow and only ask obviously job-related questions. If there is any doubt at all about the legality of a question, don’t ask it. An off-hand comment can cost the company a lawsuit.

*CAVEAT: This blog does not give legal advice, but here are some questions and issues you may want to discuss with HR or your company’s legal department. Questions labeled as “illegal” and “legal” should be checked with your HR department or attorney. Examples are based on U.S. and Canadian law, but U.S. and Canadian law differ (from each other and other countries), as do laws from state to state in the U.S. Please check with your HR department or attorney regarding the issues raised in this blog post and how they apply to your company.

Sources
8 Interview Questions You Should Never Ask, Inc.
13 Questions to Avoid During a Job Interview, Entrepreneur
Discrimination during a Job Interview, Lawyers.com
Interview Questions: Legal vs. Illegal, Canada Human Resources Centre

Image courtesy of  Naypong | FreeDigitalPhotos.net

Jennifer McFarlane

Jennifer is a human resources consultant specializing in medium to large enterprise and provides HR advice, support, and outsourced solutions for companies based in the United States.
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