H. Discriminatory Interview Questoins

Twenty years ago, employers could ask almost any question they wanted of an applicant or employee. Questions could be asked about marital status, past arrests, alcohol and drug use, credit history, childbearing plans and age. Now, however, such questions are illegal, because employers are supposed to consider applicants as they presently are, not as they were in the past or may be in the future. Employers cannot use any application process which screens out a disproportionate number of women or minorities. All inquiries concerning an applicant's race, color, religion or national origin, either direct or indirect, may be regarded as evidence of discrimination.

Female applicants are frequent targets of discriminatory questions. Some employers ask questions about child care of female applicants but not males (e.g., "Who will look after your child?" "What birth control do you use?" "If you become pregnant, would you have an abortion?" "Are you married?" "Do you plan on having children?"). These are all now illegal. Just asking such a question exposes your company to a lawsuit, whether or not you hire the applicant.

Employers may legally pose questions that test a candidate's motivation, maturity, willingness to accept instruction, interest in the job, ability to communicate and personality. The following are examples of the kinds of questions that may be asked:

• What are some of the responsibilities you had in previous jobs?
• What skills and traits do you have that suit the needs of our company?
• What attracted you about the position?
• What are some of your outside interests?
• How would you describe your relationship to those with whom you work?
• What are some of your short and long-term goals?
• Why do you want to change jobs?
• What form of supervisory style do you prefer?

However, inquiries into an applicant's race, color, age, sex, religion and national origin which further discriminatory purposes are illegal under Title VII of The Civil Rights Act of 1964, as amended. This law applies to private employers, employment agencies, labor organizations and training programs. In addition, each state has its own discrimination laws, which often go further in protecting the rights of applicants during job interviews.

Innocent questions often result in companies having to defend against costly and time-consuming charges of discrimination filed with the federal EEOC and various state agencies, including the Human Rights Commission and the Attorney General's Office. If discrimination is found, an applicant may be awarded damages including a job offer, attorney costs and other benefits. Following enactment of the Civil Rights Act of l991, successful claimants may also demand jury trials and recover compensatory damages (i.e., money paid for emotional pain and suffering) and punitive damages up to $300,000, plus money for expert witnesses who testify at the trial. Thus, in addition to lost workertime, poor publicity and expensive legal fees, costs and verdicts, sloppy pre-employment interviewing techniques may also force you to hire someone you had no intention of bringing on board!

The following chart illustrates many interview questions that are legal, as well as those found illegal under EEOC guidelines and state regulations. Note that the same question can be either legal or illegal depending on your intent in asking. For instance, asking a woman her maiden name is legal if you need the information to verify past employment records, but not if your intent is to check family background. Additionally, although it is legal to ask an applicant if he/she has any relatives working for the company, it is not legal to ask the names of any relatives in general. Thus, if the applicant responds that no relatives are employed by the company, never follow up the question by asking for names of other relatives.

Counsel Comment #13: To avoid the problems of asking discriminatory questions during the hiring interview and committing other illegal acts, all intake and screening personnel must be trained as to what questions are and are not legal. It is a good idea to prepare a standard questionnaire which lists legal questions for interviewers. You can develop a list by consulting the following examples of legal and illegal questions. By referring to such a list, you could demonstrate at an EEOC or Human Rights Commission hearing that an applicant's testimony was incorrect (i.e., that discriminatory questions are never asked of candidates because the interviewer only asks questions prepared from the list and is instructed not to deviate from those questions). Since discrimination hearings in this area frequently boil down to the word of the applicant versus the word of the interviewer, this document may help to convince the hearing examiner that discriminatory questions were not asked at the interview, and therefore, to dismiss the charges.

Interviewing job candidates is a delicate business. Companies should also refrain from the following for additional protection:

• Asking for photos before hiring;
• Asking for clergy references before hiring;
• Asking questions of females that you would not ask of males;
• Asking questions about applicant's military service in countries other than the U.S.;
• Asking questions about applicant's military record or type of discharge.

Pay special attention to the following areas, where charges of employment discrimination often loom.

Arrests

Employers are not permitted to ask applicants about past arrests because these are often overcome by acquittal, dismissal, withdrawal of charges, or by overturning the conviction, and their use in employment decisions tends to discriminate against minorities. Even when administered evenly, a policy against hiring workers with arrest records may have an adverse impact on minorities when compared with other groups and is therefore illegal.

In limited situations in a few industries, such as day care, employers have an obligation to inquire thoroughly about an applicant's past, including arrests, but this should only be done where permitted by law and if absolutely necessary. Under federal law, however, it is legal to inquire about convictions of a felony that took place within the not-too-distant past (i.e., within seven years).

Nevertheless, many states have laws that are considerably more restrictive. For example, in Massachusetts, an employer may not ask about first convictions for certain offenses such as speeding or simple assault and is prohibited from asking about convictions if the applicant was released from jail more than five years before. Under New York law, if an affirmative response is received that the applicant was convicted of a felony within the past seven years, the employer still has the burden of showing that the nature of the conviction impacts on the person's honesty or trustworthiness necessary for the job in question (i.e., a bank teller or pharmacist); if there is no correlation or if the job is not security sensitive, the employer may be required to hire that individual to avoid charges of discrimination!

The EEOC suggests that employers consider the following when evaluating an applicant's conviction record:

1. How long ago did the conviction take place? (If a long time has elapsed, the conviction may not now be relevant.)
2. Was the offense a minor crime or serious one?
3. Was it the first offense?
4. How long has the applicant been employed since the last conviction?
5. Has the applicant sought treatment? If so, what kind and for how long?
6. Does the applicant's history have a direct impact upon the particular job being offered?

Counsel Comment #14: To avoid charges of discrimination, never consider the job and the applicant in the abstract. Be sure that any decision is documented and demonstrates a legitimate business purpose. To avoid any appearance of wrongdoing, do not ask for a valid driver's license on an employment application. Rather, state that employment is subject to possession of a valid driver's license and offer the job to the applicant. Then, when the applicant cannot produce the valid license, refuse to extend the position.

Disability

Enactment of the Americans With Disabilities Act of l990 requires employers to change their hiring policies toward handicapped workers. This law directly impacts pre-hiring questions. Now, any question asked at the hiring interview probing an applicant's medical history is probably illegal. This includes.findlaw such questions as, "Have you ever been hospitalized?" and "Did you ever file a workers' compensation claim?"

In the past, you could legally ask an applicant, "Do you have any impairments that interfere with your ability to work in this job?" Now, however, this question cannot be asked.

Counsel Comment #15: To overcome this problem, attach a detailed job description which states essential duties of the job. For example, the description can state "The job being offered requires extensive work on weekends and overtime, often without much advance notice."

Questions that could then be asked legally include: "Can you work overtime?" "Are there any problems meeting the job's demands of working overtime or on weekends without lengthy advance notice?" Such a policy may prove that you alerted all applicants regarding important elements of the job beforehand and were not necessarily singling out disabled workers.

Alcohol And Drug Addiction

Federal laws state that it is illegal to be denied employment or fired from a job as a result of current participation in a drug or alcohol treatment program if enrollment does not interfere with a person's ability to do the job.

Medical Exams

The ADA prohibits pre-employment physicals even if all applicants are required to take physicals in the screening process. Only post-employment physicals are permitted provided the job is sufficiently strenuous (i.e., firefighter) to mandate the taking of physicals. In such cases, all individuals would be offered jobs on condition of successful results of physicals and are sufficiently advised about this requirement for the work to be performed.

Counsel Comment #16: The job description should state that offering the job in question is contingent upon successful completion of the physical. To avoid charges of handicap discrimination, only make the physical a final requirement for consideration after making the job offer; be sure that top physical condition is absolutely essential for the job and that all entering employees within the same job category are required to undergo the same examination. And be sure that your company pays for the cost of such exams.

TIP: Some companies violate the law by unknowingly designing medical history forms that contain discriminatory questions. Be aware that company doctors often ask discriminatory questions during the examination; employment cannot be denied on the basis of such illegal questions. Instruct company doctors that where a disability is evident, inquiries as to the nature or severity of the disability cannot be made.

All candidates who receive physical examinations to detect disabilities that would substantially interfere with successful job performance of a particular job should be notified by an appropriate personnel officer when the results of the physical examination have been received and the company is content with their accuracy. Avoid disseminating the results to nonessential third parties to avoid charges of defamation and other violations of privacy rights.

Medical Conditions And Their Effect On Insurance Plans

Refusal to hire an applicant because you fear the applicant's condition will adversely impact your company's insurance plan is illegal. A company cannot deny employment to a qualified applicant because a spouse or child with a serious illness would create an insurance expense. Also, EEOC regulations and interpretive guidelines state that a qualified handicapped applicant cannot be denied a job because a company's health or liability insurance does not cover his or her disability or because of the increased cost of insuring that disability.

TIP: The ADA does not require that an employer offer health coverage; it merely requires that qualified handicapped individuals enjoy equal access to current health coverage. Some companies may eliminate or reduce health plan coverage to take advantage of this exception, provided it can be proved that such a decision was made independently of one person's effect on the company plan. For example, rather than merely excluding AIDS care, a company might eliminate expensive procedures and coverage for open heart surgery and cancer. Since the EEOC's interpretive guidelines do not affect the employer's ability to deny coverage for pre-existing conditions in health insurance policies (even if they adversely affect individuals with disabilities), some companies are implementing cost-containment plans offering lower or no health benefits for preexisting problems, provided all workers are affected.

Credit Reports

The Fair Debt Credit Reporting Act restricts employers from using credit reports for hiring or employment decisions. If such a report is made, companies are required to advise the applicant or employee that the report is being ordered, together with the name and address of the credit agency supplying it. Finally, the report can be ordered only if it serves a legitimate business purpose.

Discriminatory Questions After The Formal Interview

Discriminatory questions are sometimes asked after the formal interview with the applicant has been concluded (i.e., taking the applicant out to lunch after the interview) but before the decision to hire is made. Information solicited in this way may not be considered in the hiring process: the ramifications of asking such questions in informal settings may be just as serious.

Testing And Other Attempts To

Discover Discrimination

Recently approved federal policies allow your company to be "tested" for civil rights violations. Lawsuits resulting from the practices of testing are already in place and the use of testers is becoming more widespread as news of specific techniques travels. Since testing could be a way of entrapping unsuspecting employers, supervisory-level employees who interview applicants should be trained to avoid certain kinds of conversations.

EEOC policy guidelines make it clear that the agency upholds the rights of any person applying for a job "whether or not a person intends to accept a position for which he/she applied." Organizations using testers may file complaints with the EEOC or go directly to court with the company allegedly committing the violation. One public policy organization recently conducted two employment discrimination studies using testers and found that the Immigration Reform and Control Act was used as a pretext to discriminate against Hispanic applicants. The other study found that white applicants were three times more likely to be favored over minority applicants.

TIP: With the enactment of the Civil Rights Act of 1991, the stakes have risen and companies can no longer afford to discriminate during hiring or at any other stage of the employment process. Implementation of the Act exposes employers to a variety of additional, significant damages. This includes.findlaw recovery by plaintiffs of compensatory and punitive damages up to $300,000 in certain cases, jury trials where damages are available, more difficult burdens of proof for employers arguing job relatedness and business necessity in disparate impact cases, express prohibition of compensatory adjustments to test scores in employment based upon race or other protected characteristics, express provision for extraterritorial application of Title VII and the employment provisions of the ADA to employment of citizens of the United States in foreign operations of U.S. employers, plus a provision for witness fees, attorney fees and interest against the employer.

It is critical that your company act properly and avoid discrimination during the hiring process. Thus, never assume an individual really wants the job: be aware that he/she may be a discrimination expert-tester. Follow the law and treat everyone similarly. Hire employees on merit and avoid stereotypes. For example, do not refuse to hire a woman as a traveling salesperson because to do so may amount to unlawful discrimination. In one recent case the EEOC overruled arguments that such a position would expose the woman applicant to difficult-to-handle socialization. Similarly overruled was an argument that the woman's roles as a mother and wife would make traveling extra difficult.

Avoid denying a minority applicant an interview or appointment. Finally, never ask discriminatory questions at the hiring interview, probing for responses on the basis of race, sex, national origin or citizenship status.