Although each new-hire is different, every interview and hiring decision presents similar issues and risks. Many of the risks inherent in the hiring process can be minimized by the use of a standard interview script for each position. This will not only assure that all applicants are treated the same, thus reducing the chances of a discrimination claim, but it will also help ensure that the person conducting the interview avoids many of the “taboo” questions and topics. Below are some of the most common issues to be avoided during an interview.
Age: Generally, you should not ask about an applicant’s age. You may only ask about an applicant’s age if the position has a legally mandated minimum age requirement. Asking about the dates that an applicant graduated from school can be seen as a ‘back-door’ way of gauging an applicant’s age.
National origin: An employer cannot ask about an applicant’s nationality, that of her relatives, where she or her relatives were born; or about what other languages she speaks, unless there is a legitimate employment reason for doing so. Generally, English-Only policies are presumed to be illegal. Do not ask for documents proving employment eligibility other than those listed in the I-9 form.
Eligibility to Work in the U.S.:An employer must require an applicant to prove that she is eligible to legally work in the United States (aka the I-9 process). The documents submitted by the applicant must be from a list approved by the U.S. Citizenship and Immigration Services, but an employer may not specify which of those documents the applicant must produce.
Race/Color: Unless required to do so by an applicable Executive Order, Affirmative Action plan or other legitimate business reason, an employer should not ask about an applicant’s race or color. If an employer does ask an applicant about his race or color for a legitimate reason, it may consider using a form and keeping that information separate from the applicant’s application.
Gender/Sexual Orientation/Gender ID or Transgender Status: An employer should not ask an applicant about her gender, sexual orientation, gender identity or transgender status unless required to do so by an applicable Executive Order or Affirmative Action plan. Employers should also refrain from asking an applicant if she plans on having children or her plans for child-care as these questions can be seen as sexist. An employer may inform an applicant of its hours and attendance policies and ask if the applicant can meet those requirements. However, an employer should not inquire how the applicant plans to meet its attendance requirements.
Religion: An employer should not inquire about an applicant’s religious beliefs, customs or church attendance. An employer may inform an applicant of its policies and ask if the applicant is able to comply with those policies. If an applicant identifies a need for an accommodation based upon a sincerely held religious belief, or if the employer has a good faith reason to know that the accommodation is due to a sincerely held religious belief, the employer should discuss the accommodation with the applicant. An employer should not ask an applicant why she cannot work a required schedule, or if there are religious holidays which would prevent a candidate from working. Refusing to hire an applicant because of the need for an accommodation could be illegal. (Please refer to the U.S. Supreme Court opinion in EEOC v. Abercrombie & Fitch.)
Disability: An employer should not ask an applicant to submit to a medical exam, inquire if the applicant suffers from a disability, or ask any questions that would be likely to require the applicant to disclose a disability until after the employer has made a bona fide offer of employment. And, after an applicant has been hired an employer should not make medical inquiries or require the employee to submit to a medical examination unless doing so is job related and consistent with business necessity. Doing either is likely to violate the Americans with Disabilities Act and Louisiana law. Any documentation regarding an applicant’s medical condition or disability must be kept in a separate, confidential file.
An employer can identify the essential functions of the position in question and ask the applicant if she can perform those functions with or without a reasonable accommodation. An employer can also ask the applicant to demonstrate how she will perform the functions. However, the employer should only do so if it asks this of all applicants. Employers should not require an applicant to complete a Second Injury Fund Questionnaire until after it has made a bona fide offer of employment.
Criminal Background: Employers should exercise caution in utilizing criminal background checks and arrest records in making an initial hiring decision. Arrests or criminal convictions should not be used as an automatic disqualification from employment. Doing so would have a disparate impact upon certain minorities and constitute race discrimination in violation of Title VII and state law. Rather, employers should consider, at a minimum, whether the applicant was merely arrested or was he convicted, the nature of the offense, was it related to the position that the applicant is applying for, how long ago it occurred, and has the applicant successfully been employed since resolution of the conviction. Employers should make themselves thoroughly familiar with the EEOC’s position on utilizing criminal background checks in the hiring process. The EEOC’s 2012 Enforcement Guidance regarding arrest and conviction records can be found at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm