Richard S. Cleary, Editor
Greenebaum Doll & McDonald PLLC

Vol. 18, No. 10
July 2008

HIRING

Can you identify interview mistakes?

A critical aspect of your duties may be to conduct interviews with prospective employees. The following hypothetical scenario is intended to remind you of some no-noes when it comes to interviewing employees.

A-hunting we will go

Elmer Employer has decided to make a serious effort to comply with all applicable employment laws. Having just lost his assistant, Annie, he has advertised for a new assistant. He hopes to find someone who is financially responsible and whose attendance and punctuality will be good.

Angela Applicant, a middle-aged woman, shows up at the appointed time. Elmer notes that she wears a Jones High School class ring, tells her that he also went to Jones High, and asks her when she graduated. Somewhat uncomfortable, Angela reveals that she graduated in 1972. Elmer then tells Angela about the job, explaining that it sometimes requires transporting heavy boxes up and down stairs. Noticing that Angela wears a brace on her arm, he says: "Do you have a problem with your arm?" Looking a bit more uncomfortable, Angela says: "No, I can do that."

Elmer tells Angela that regular attendance and punctuality are essential, and asks her if she has school-aged children. When Angela tells him she is a single mother, Elmer sinks in his chair and says, "I know from experience that single mothers lose a lot of time from work because of their kids." Angela assures him that she has excellent childcare, and Elmer breathes a sigh of relief. Satisfied that Angela is a good candidate, Elmer tells her that the only thing left to do is run a credit check. He asks her if she minds if he does that, and Angela says that would be fine.

How do you think Elmer did in this interview?

If you think Elmer still has a lot to learn, you're right. He made several major mistakes. First, although he was undoubtedly trying to establish a rapport with Angela, he shouldn't have asked her the year she graduated from high school. High- school graduation dates usually reveal age. In this case, one can determine that Angela is about 54 years old. She may well believe that Elmer wouldn't have asked the question unless he wanted to know how old she was ― and unless he believed her age was important. This exchange would likely be admissible in an age discrimination lawsuit.

Elmer's next mistake was asking Angela if "she had a problem with her arm." Under the Americans with Disabilities Act, you may not ask, at the preoffer stage of employment, questions likely to elicit information about a disability. This question fell in that category. Elmer could have and should have simply asked if there was any reason Angela couldn't transport boxes or perform any other aspect of the job, with or without reasonable accommodation.

But Elmer didn't stop there. His next big mistake was inquiring about whether Angela had children and then sharing his experiences with single mothers. Because questions and information along these lines imply gender discrimination, it's best to steer clear of them.

Finally, Elmer shouldn't consider conducting a credit check on Angela without seeking advice from an attorney. Depending on how the credit check is done and which written disclosures are provided, credit checks of applicants and employees may violate the Fair Credit Reporting Act.

Bottom line

It looks as though Elmer needs a bit of help with his interviewing skills. Because he plans to hire Angela, she has suffered no legally recognizable injury at this point and will probably forgo filing an administrative claim or lawsuit at this time. If Elmer terminates her down the road, however, one or more of his interviewing faux pas may show up as part of her claim.

Copyright 2008 M. Lee Smith Publishers LLC

KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.