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Troy P. Foster and Stephanie M. Cerasano, Editors
Ford & Harrison LLP
Vol. 14, No. 11
April 2008
HIRING
You can't say that!
Stephen B. Coleman
Recent guidance from the Equal Employment Opportunity Commission (EEOC) included the following example of unlawful conduct by an employer during the hiring process:
Patricia, a recent business school graduate, was interviewed for a position as a marketing assistant for a public relations firm. At the interview, Bob, the manager of the department with the vacancy being filled, noticed Patricia's
wedding ring and asked, "How many kids do you have?" Patricia told Bob that she had no children yet but that she planned to once she and her husband had gotten their careers underway. Bob explained that the duties of a marketing assistant are very
demanding, and rather than discuss Patricia's qualifications, he asked how she would balance work and childcare responsibilities when the need arose. Patricia explained that she would share childcare responsibilities with her husband, but Bob
responded that men are not reliable caregivers. In this scenario, Bob was reluctant to hire a qualified candidate because he thought she might have kids, and he was worried that motherhood was inconsistent with the demands of the
workplace. As the EEOC explained, Patricia was the victim of sex-based stereotyping in violation of Title VII of the Civil Rights Act of 1964. This scenario illustrates the potential risks you face if you fail to adequately train your managers about
unlawful interview practices. This article contains a few simple tips that will help you avoid claims for hiring discrimination.
Avoid questions related to protected classes
Managers shouldn't ask questions that relate to a candidate's age, race, national origin, religion, gender, or disabilities. Some questions are so obviously off limits (e.g., What is your ethnicity?) that we need not spend time discussing them.
However, more subtle questions also can lead to claims of a discriminatory hiring process. For example, asking a candidate in a protected age group how long he plans to work before retiring or whether he would have trouble taking direction from
younger supervisors can be evidence of age bias against older workers.
Similarly, as illustrated above by the hypothetical scenario, questions about whether a candidate has children can create liability if they are motivated by gender stereotypes, such as a belief that women with children aren't career- oriented. Thus,
managers need to consider their interview questions carefully to avoid allegations of discrimination based on protected classes.
Stick to questions that are job-related
To avoid legal pitfalls, a good rule of thumb is to make sure that all inquiries are job-related. If a question isn't likely to elicit information that is relevant to the candidate's potential to succeed in the position, it's not worth asking. For
example, questions about a candidate's marital or familial status are unlikely to elicit any information about future job performance and may result in liability if the responses are used to make decisions based on gender stereotypes.
Treat all candidates consistently
Another helpful practice is to maintain consistency by asking all candidates similar questions. Failing to do so can transform neutral questions into evidence of hiring discrimination. For example, a question about whether a candidate has enough
energy to work the long hours required by the job doesn't appear to relate to age. But if only older candidates are asked the question, the practice may be used as evidence of age discrimination.
To further stress the need for consistency, the EEOC has stated that it will consider the following evidence in determining if an employer has discriminated against female caregivers: "Whether the [employer] asked female applicants, but not male
applicants, whether they were married or had young children, or about their childcare and other caregiving responsibilities." By treating all candidates consistently with respect to interview questions, you can reduce your potential exposure to
claims of intentional discrimination in the hiring process.
Don't ask about disabilities before the job offer
The Americans with Disabilities Act (ADA) creates a unique set of requirements regarding preemployment inquiries. As an initial matter, the ADA prohibits you from making any disability-related inquiries before an offer of employment has been
extended. The term "disability-related inquiry" generally means any question that is likely to elicit information about a disability. Thus, questions about whether a candidate has an impairment, is taking medications, or has filed workers'
compensation claims in the past should be avoided at this stage of the hiring process. Given the breadth of the prohibition, you should generally avoid asking any questions that relate to a candidate's medical condition.
At the preoffer stage, you may ask if the candidate can perform the essential functions of the position with or without a reasonable accommodation. For example, if an essential function of a position is the ability to lift 50 pounds, the following
inquiry is permissible under the ADA: "Are you able to lift 50 pounds with or without a reasonable accommodation?" By contrast, the following inquiry is prohibited at the preoffer stage: "Do you have any medical restrictions that would prevent you
from lifting 50 pounds?"
Once an offer of employment has been made, you may ask disability-related questions so long as you do so for all newly hired employees in the same job category. Be aware, though, that although disability-related inquiries are permitted at the
postoffer stage, the ADA imposes restrictions on what you may do with the responsive information.
In particular, if a response is used as grounds for withdrawing an offer, you must be able to show that the candidate (1) couldn't perform the essential functions of the position with or without a reasonable accommodation or (2) posed a direct
threat to the health or safety of himself or others. As a result, even at the postoffer stage, you should only request medical information that is job-related and consistent with business necessity.
Bottom line
If you ask the wrong questions, a routine job interview can result in a claim of hiring discrimination. By following the above guidelines, you can avoid costly interviewing mistakes.
Copyright 2008 M. Lee Smith Publishers LLC
ARIZONA 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. For further information about the content of any article in this newsletter, please contact any of the editors.
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