by Steve Jones
Many federal employment laws can apply to the hiring process. Even if you are a small business that may not fall under the rules because of a limited number of employees, it’s always recommended that you follow legally compliant policies from the start. When hiring an employee, you should consider both your application and your interview process.
The Equal Employment Opportunity Commission (EEOC) suggests that employers consider the following before including a particular question on an employment application or in a job interview:
- Is this information necessary to judge the individual’s competence to perform this particular job?
- Does this question tend to disproportionately screen out minorities and females?
- Are there alternate nondiscriminatory ways to secure the necessary information?
Certain application and interview questions tend to be problem areas for employers. In preparing your job applications and interview questions, you should be aware of some potential pitfall areas. Note that some of the information below are applicable only to much larger employers.
Age, date of birth. Generally, age is considered to be irrelevant in most hiring decisions, and therefore, you shouldn’t ask about date of birth. Also remember that the Age Discrimination in Employment Act (ADEA) protects employees who are 40 or older. You may ask an applicant to state his age if he is younger than 18. If you need date of birth for internal reasons (e.g., in connection with a pension or profit-sharing plan), obtain it after the person is hired.
Race, religion, national origin. Generally, you shouldn’t ask questions about race, religion, or national origin. However, if the information is necessary for equal employment opportunity (EEO) or affirmative action reasons, you should record it on a separate form (not on the application itself), and it should be available only to your personnel department. Don’t request pictures of applicants because that can form the basis for a discrimination claim.
Physical traits, handicaps. Care must be taken when you ask a person about any physical, mental, or health conditions she may have. The Americans with Disabilities Act (ADA) prohibits employers from asking any questions about physical or mental handicaps before making a job offer. The general rule of thumb for health-related questions is that you shouldn’t ask a question if it might elicit information about a person’s disability. If a job does have certain physical qualifications, it’s proper to ask questions related to those requirements only.
Education. If a job doesn’t require a particular level of education, it’s improper to ask questions about an applicant’s educational background. When the performance of a job requires a particular level of education, you may ask applicants about their educational background, the schools they attended, the degrees they earned, and any vocational training they had.
Sex, marital and family status. Generally, questions related to gender or marital and family status shouldn’t be asked on a job application or in a job interview. Likewise, questions about childcare arrangements are improper in most cases. Questions about the likelihood of pregnancy certainly should be avoided. If such information is needed for social security, income tax, or other purposes, obtain it after the applicant has been hired.
My best advice is to avoid the problem areas outlined above when you interview job candidates. Generally, there’s no legitimate purpose for eliciting such protected information. If the information is necessary for some legal compliance or employee benefits purpose, you should obtain it outside the hiring process.
About: Arkansas Employment Law Letter:|
Excerpted from Arkansas Employment Law Letter, and written by attorneys at the law firm of Jack Nelson Jones & Bryant, P.A. ARKANSAS EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of Arkansas does not certify specialists in labor law, and we do not claim certification in any listed area. For further information about the content of this article, please contact any of the editors.