Job interviews, in particular, are legal land mines.
A biased interviewer, an illegal question, or even a seemingly innocent question
that elicits personal information unrelated to the job can trigger a discrimination
complaint. Interviewers should be carefully trained to not make statements
or promises that may be construed as oral contracts that may be legally binding
on the employer. Training should include information on applicable federal,
state, and local laws that prohibit discrimination.
Federal civil rights legislation, and comparable legislation
in most states, requires employers to observe hiring practices that do not
discriminate on the basis of race, color, creed, age, sex, national origin,
or disability. The laws in most states expand the protected categories beyond
the federal law. The key to avoiding such discrimination is to be familiar
with state and local statutes and to use objective, job-based criteria for
all hiring decisions.
May 15, 2013, the Equal Employment Opportunity Commission (EEOC) updated its Americans
with Disabilities Act (ADA) guidance on hiring and employing individuals
with cancer, diabetes, epilepsy, and intellectual disabilities. These updates
address the changes to the ADA by the ADA Amendments Act. The four separate
documents can be found at EEOC's website.
This guidance basically reminds
employers that they may not ask an applicant about a medical condition. Further,
applicants need not disclose an impairment unless they need a reasonable accommodation
during the application process. However, these prohibitions do not prohibit
an employer from asking whether the applicant can perform the essential functions
of the job with or without a reasonable accommodation.
Genetic information. In 2013, the
EEOC settled the first lawsuit that it filed under the Genetic Information
Nondiscrimination Act (GINA). GINA prohibits discrimination against
employees or applicants because of genetic information such as family medical
history. The employer in this case sent an employee for a preemployment physical,
where she was asked to complete a questionnaire and disclose the existence
of disorders in her family medical history, in violation of the law. In addition
to monetary compensation, the employer agreed to take actions to prevent discrimination,
such as posting an antidiscrimination notice, disseminating antidiscrimination
policies to employees and providing antidiscrimination training to employees
with hiring responsibilities. Employers must make sure that their medical
inquiries do not impermissibly request family medical history, including making
such a request through a contract medical examiner. Genetic discrimination
is one of EEOC’s six national priorities in its strategic enforcement.
Criminal history. Enforcement
guidance issued by the EEOC recommends that employers not ask about criminal
convictions on job applications. During an interview, the information may
be disclosed by a prospective employee, or it may be revealed in a background
check. According to the EEOC guidance, if an employer chooses to exclude an
applicant because of a criminal conviction, the employer must be able to show
that the exclusion is job related and consistent with business necessity.
One way to satisfy this requirement is to develop a targeted screen that takes
into consideration the nature of the crime, the time elapsed, and the nature
of the job. In addition to the targeted screen, employers must conduct an
individualized assessment consisting of:
• Notice to an applicant that he or she has been screened out because
of a criminal conviction;
• An opportunity for the applicant to demonstrate that the exclusion
should not be applied because of his or her particular circumstances; and
• Consideration by the employer of the additional information.
EEOC has also issued an informal discussion letter outlining when the requirement
of a high school diploma may violate the ADA. Because ADA regulations include
learning as a major life activity, an individual who has a physical or mental
impairment that substantially limits the major life activity of learning will
have an ADA disability. If that disability prevents the individual from getting
a high school diploma, an employer may violate ADA regulations by using a
diploma requirement to screen out applicants.
Please see the
national Disabilities (ADA)
In an effort to make the interview process less
subjective and less prone to discrimination claims, many organizations provide
training in interviewing skills for supervisors and others involved in the
hiring process. Many employers have written policies with detailed, step-by-step
employment interviewing guidelines, including specific questions that should
and should not be asked during the interview.
Many court decisions have indicated that applicants may allege
discrimination if the interviewing process eliminates a significant number
of members of a “protected group” (i.e., those groups specifically given legal
protections by state and federal civil rights laws). In other words, if a
selection procedure has a disparate impact on a protected group, it may be
the basis of liability for discrimination.
EEOC Strategic Enforcement. In
its Strategic Enforcement Plan for fiscal years 2012 to 2016, the EEOC is
targeting discriminatory hiring practices, including discriminatory policies,
restrictive application processes, and the use of screening tools (e.g., preemployment
tests, background screens, and date of birth screens in online applications).
Employers should review their current hiring policies and practices to ensure
compliance with federal, state, and local laws that prohibit discrimination.
See the Related Information section below.
Some ground rules for successful interviewing are:
• Concentrate on subjects that are clearly tied to the job itself,
such as work experience, particular skills, and educational background.
• Avoid questions pertaining to any medical condition
a candidate may have, but if a candidate has an obvious disability, you may
ask the candidate how he or she would perform a certain job-related activity
with or without reasonable accommodation.
• Be consistent in your questioning. Don't pose certain questions
to only female applicants, for example.
Interviewers should also be reminded to avoid such common errors
• The “halo” effect--when interviewers are unduly influenced by
a single trait, which affects their judgment of the applicant's other characteristics
• Stereotyping--making a judgment based on group membership (racial,
ethnic, etc.) rather than on the basis of the applicant's individual abilities
• “Just like me” syndrome--favoring an applicant because the applicant's
attitudes and opinions are similar to the interviewer's
It doesn't take an instance of blatant racial or sexual discrimination
to trigger a lawsuit and potentially a huge damage award. A rejected applicant
might interpret casual or thoughtless treatment as discrimination. To avoid
potential litigation, employers should periodically audit their hiring process
to gauge its effectiveness and to check for subtle forms of discrimination.