Employee interviews can provide a valuable means for employers to learn about a prospective employee, but the process can also be fraught with legal minefields. For example, consider a lawsuit that was filed in federal court against Wal-Mart Stores. In that case, the interviewer asked the applicant “What current or past medical problems might limit your ability to do the job?” Although not apparent to the interviewer at that time, the applicant’s right arm below his elbow had been amputated and he had been fitted with a cosmetic prosthetic device. The applicant was not offered the job and he filed suit under the Americans with Disabilities Act. The jury awarded the Plaintiff $157,500 because the Wal-Mart interviewer asked an illegal question. This award included $100,000 in punitive damages for the unlawful inquiry, $50,000 in punitive damages for discriminatory failure to hire, and $7,500 in compensatory damages.
Most employers already know that questions concerning an interviewee’s race, color, creed, religion, national origin, ancestry, sex, union membership, sexual orientation, marital status, disability or age are unlawful and off limits during the interview process. The exception to this rule is where the attribute is central to the job. For example, you may ask a candidate about their religion if you are a religious organization and the job requires the teaching of the principles of your particular religion.
While avoiding unlawful subjects seems easy enough, it’s not always obvious what questions might be construed as inappropriate or elicit information relating to an applicant’s protected status that may subject an employer to liability. For example, the following questions or similar questions (or observations), while seemingly benign, are improper and tend to elicit information that the interviewer is not entitled to:
- What year did you graduate from high school? (This is an improper request for age-related information. If necessary, you may confirm that the individual is over 18, but the age-related inquiries must end there.);
- Are you a U.S. citizen? (Questions relating to citizenship are prohibited unless the position specifically requires one to be a U.S. citizen and the job posting states as such.);
- Do you have children? Can you get a babysitter on short notice for overtime or travel? (Stay away from questions targeting family or marital status-related information and may be construed as gender discrimination.);
- Have you ever been arrested? (Questions about arrests and convictions that are NOT substantially related to the particular job are off-limits.);
- Is this your maiden name? (This sort of request is improper as it seeks marital status information.);
- How much longer do you plan to work before you retire? (Again, this request would tend to elicit age-related information and could communicate a preference for younger workers.);
- Do you have any impairments that may affect your performance in the position? (This is an improper request for disability-related information.)
With respect to individuals with disabilities or medical conditions, an employer should not ask questions relating to the employee’s medical status until after a conditional job offer is made. (Note the article by Steve Bogue in this issue regarding what constitutes a “real” job offer under the ADA.) An employment offer to an individual with a medical condition, for example, can be withdrawn if it becomes clear that the individual cannot perform the essential functions of the job, with or without an accommodation, or the individual would pose a direct threat (a significant risk of substantial harm to themselves or others in the workplace).
In order to avoid potential pitfalls that can expose a company to liability, employers should also take a strategic and preventative approach to minimize the risk posed by the recruitment process and hiring decisions, including:
- Adopt an Equal Employment Opportunity/Harassment Policy.
- Reserve the right to evaluate and confirm all information supplied by the applicant and condition employment upon truthful information supplied by the applicant.
- Provide applicants with notice of their at-will employment status and the Company’s policies regarding working hours, overtime, drugs and alcohol, unlawful solicitation and other essential policies.
- Establish written job descriptions setting forth the qualifications for all positions including the physical requirements for the job.
- Only ask standardized, job-related questions. Stay away from topics that are not relevant to the job or the candidate’s qualifications.
- Ensure that interviewers are consistent in their questioning of candidates. Train your interviewers as to what questions may lawfully be asked during the hiring process and how to redirect the conversation when an applicant volunteers “off limits” information.
- Finally, have an experienced labor/employment lawyer review your hiring materials and employment policies.
Our Firm’s employment lawyers can “audit” your Company’s hiring practices and procedures to insure they are in compliance with the law and legitimate inquiries are made to choose the best candidate for the position.