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