Questioning Job Applicants
Various laws and regulations restrict the ability of HR personnel and hiring managers from asking various questions, such as those relating to military discharges and disabilities. In this month's column, the three cardinal rules of interviewing are disclosed.
By Keisha-Ann G. Gray
The interview is an important component of the hiring process. Ask the right questions and employers can identify the most talented applicants and improve their businesses. Ask the wrong questions, however, and employers can find themselves pummeled with costly discrimination claims. To assist you in avoiding the latter scenario, my column this month is dedicated to two potentially problematic interview questions.
Question: Can an employer legally ask an applicant with prior military service if (s)he has been honorably or dishonorably discharged?
Answer: While this inquiry is not per se illegal, it is dangerous. This is because employers subject themselves to possible disparate-impact claims from minority groups that have received a disproportional amount of undesirable military discharges.
The EEOC has concluded that basing hiring decisions solely on military discharge status violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., because discharge status has been found to adversely impact African-Americans, and it is not unequivocally tied to general business necessities. See EEOC Dec. 74-25, 10 FEP 260, 265 (1973) (2.6 percent of whites and 5.2 percent of African-Americans receive undesirable discharges); accordDozier vs. Chupka, 395 F. Supp. 836, 850-51 (S.D. Ohio 1975) (bonus points for honorable discharges invalidated).
Therefore, the "discharge" question should be asked with extreme caution and only when the information sought is directly relevant to a necessary characteristic for the desired job.
Further, to be safe, such inquires should be accompanied by a statement that a dishonorable discharge is not, in and of itself, an absolute bar to employment, and other factors will be taken into consideration when making the final hiring decision.
Question: I manage a 24/7 crisis intervention hotline. Many of the callers are considering suicide, have been victims of abuse, are drug and alcohol users, etc. Due to the nature of the calls and the seriousness of the issues involved, I need to know how much I am allowed to ask about potential employees' mental states. I know that we can request drug tests and conduct criminal-background checks, but I can't find anything about my specific concern. I have an employee who recently suffered a mental breakdown and I am now finding out (from her) that she is diagnosed as bipolar and has been admitted to an inpatient mental facility three times during the year prior to coming to work here. None of this was known to me prior to her hiring and she never displayed any mental problems until lately. We are a small nonprofit and resources are limited, but we need to know where to look for the answers to this issue.
Answer: The federal Americans with Disabilities Act applies to employers of 15 or more employees. See 42 U.S.C. §§ 12111-12117 (2000). It is one of the few employment-discrimination laws that directly address pre-employment inquiries.
It prohibits employers from asking pre-employment questions about disabilities and protects individuals who have been or are disabled, as well as those who are perceived to be disabled. Disability is defined under the ADA as a physical or mental impairment that substantially limits a major life activity. See 42 U.S.C. § 12102(2) (2000) and 29 C.F.R. § 1630.2(g)(2005).
Your state law may define disability in broader terms than is defined under the ADA. In New York, for example, the New York City Human Rights Law defines disability as any physical, medical, mental or psychological impairment (substantially limiting or otherwise), or a history or record of such impairment. See Administrative Code §8-102(16)(a) (2008).
The California Fair Employment and Housing Act defines mental disability as any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity (substantially or otherwise); See Government Code § 12926 (2008).
Your question implicates mental disabilities -- a protected characteristic that cannot legally be considered when making hiring or employment decisions. As a general rule, employers should refrain from asking questions designed to elicit information that cannot legally be considered in making hiring decisions.
While your concern regarding the mental state of applicants for your organization is understandable, you cannot ask questions aimed at eliciting a response from the applicant that requires the disclosure of the existence, nature or duration of a disability before you (the employer) has made a bona-fide job offer to the applicant.
Nonetheless, you may ask the applicant to describe or demonstrate how he or she plans to perform each required function of the desired job. Nonetheless, you may ask the applicant to describe or demonstrate how he or she plans to perform each required function of the desired job. See 42 U.S.C. § 12112(d)(2)(B)(2000); see also Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations, 3 EEOC C
OMP.
MAN.
(BNA) 902:0073 (2002).
The level of inquiry permitted under the ADA changes, however, once the employer extends a bona-fide offer of employment to the applicant.
At this stage, employers may require that the applicant answer health-related questions if and only if 1) the questions asked are directly related to the duties required for the job; 2) the same questions are asked of all entering applicants who will be doing the same job; 3) any medical information obtained is treated as confidential; and 4) the results of the inquiry are not used to discriminate against the new hire in violation of federal or state law.
Once a potential or confirmed disability is identified, the employer should engage the applicant in the interactive process to determine what reasonable accommodation(s) may be required for the applicant to perform the essential functions of the job.
Applicants who are disabled, but can still perform essential job functions with an accommodation that does not unduly burden the employer must be provided with the necessary reasonable accommodation, and permitted to perform the job.
As you can see, when making hiring decisions, inappropriate interview questions are often difficult to identify and avoid. Nonetheless, employers will do best to steer clear of discrimination charges if they keep their interview questions in line with these three cardinal rules:
* Do not ask about any characteristic that discrimination laws protect;
* Ask only about the applicant's abilities -- not his or her disabilities, and;
* If the question doesn't relate to an essential job function -- don't ask it.
The EEOC has further guidance online on this issue, including documents that deal with
the EEOC's position on the ADA
,
the EEOC's ADA enforcement guidance
and
disability-related inquiries and medical examinations
.
To submit a question to the Legal Clinic
.
May 19, 2008 Copyright 2008© LRP Publications
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