4/4/2024
The interview process is crucial in the hiring cycle, acting not only as an assessment of a candidate’s suitability for the position but also establishing the first impression of the company’s conduct with its potential collaborators.
It is essential that, in addition to identifying the best talents, companies conduct interviews respecting labor legislation, with special attention to the prevention of discrimination.
The employment contract encompasses three phases: pre-contractual, contractual, and post-contractual. The job posting and the interview are part of the pre-contractual stage, where, even without the formalization of hiring, there is already legal responsibility.
Advertising a job requires care to avoid discrimination.
Various countries have labor laws that prohibit employment discrimination based on criteria such as race, color, religion, sex, gender identity, sexual orientation, marital status, age, nationality, diseases, disability, among others.
These laws seek to promote equal employment opportunities and prevent prejudices from affecting hiring decisions.
The Federal Constitution, in its article 5th, establishes that all are equal before the law, without any distinction whatsoever, ensuring to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security, and property. In the context of work, article 7th prohibits any form of discrimination that aims to diminish employment opportunities or to maintain salary differences.
The Consolidation of Labor Laws (CLT), in its article 373-A, expressly prohibits the adoption of any discriminatory and limiting practice for the purpose of access to employment relationship or its maintenance, due to sex, age, color, family situation, or state of pregnancy.
In its article 442-A, the CLT prohibits the employer from requiring the job candidate to prove previous experience for a period longer than 6 (six) months in the same type of activity.
Law No. 9,029/1995 prohibits the requirement of pregnancy and sterilization certificates, and other discriminatory practices, for admission effects or maintenance of the legal relationship of work, establishing penalties for companies that practice such acts.
It is also forbidden to make demands such as the candidate having a “good appearance”, being graduated from a specific university, or residing in a specific locality.
However, nothing prevents the announcement from stating that the candidate “preferably” lives close to the place of service, arguing that commuting from very distant points can impact the quality of life and personal satisfaction of the candidate.
It is not allowed to advertise a job position for minors under 14 (fourteen) years of age, due to the validity of hiring only for apprenticeship positions, with the requirement of permission from parents, legal guardians, or responsible parties.
To conduct interviews ethically and legally, it is recommended:
– Preparation and Structuring: Interviews should be carefully prepared and structured in advance. This includes deciding which skills, experiences, and qualities are essential for the position and crafting questions that allow evaluating these aspects in an objective and impartial manner.
– Interviewer Training: Those who conduct interviews should be trained not only in effective interviewing techniques but also in labor law and anti-discrimination legislation. They should be aware of the questions that can and cannot be asked, focusing on the candidate’s skills and qualifications in relation to the position.
– Avoiding Discriminatory Questions: It is imperative to avoid questions that relate or may seem to relate to any of the categories protected by labor legislation. This includes questions about marital status, family plans, age, religion, ethnic origin, political positioning, zodiac signs, and astrological charts, among others.
– Focus on Qualifications and Competencies: The focus of the interview should always be on the candidate’s qualifications, their competencies, professional experience, and ability to perform the functions of the position.
– Documentation and Consistency: Maintaining detailed documentation about the interview process and the reasons for hiring decisions can be vital in case of legal disputes. Additionally, applying the same interview process to all candidates helps to prove that equal treatment was ensured.
The interview may include the application of competency tests and, if necessary due to the function, be conducted in a foreign language.
To not constitute any form of discrimination, any comment or question that may be interpreted as personal or intrusive and that is not directly related to the candidate’s ability to perform the job should be avoided.
The interview should fulfill its purpose of selecting the most qualified candidate to occupy the position offered by the company.
It is important to ensure that the language used in the hiring announcement is inclusive and non-discriminatory.
Conducting job interviews legally and ethically is not just a matter of complying with legislation; it is also fundamental to building a corporate culture of diversity, inclusion, and respect, as well as contributing to the construction of a positive market reputation, attracting and retaining talents from diverse backgrounds.
In summary, the interviewer should preferably always be accompanied by another person and focus on professional techniques, maintaining ethics, and avoiding any behavior that may embarrass the candidate.
The interview should aim to select the most qualified candidate, free from stereotypes or prejudices.
