Employee Interviews Can Be Minefields

Employers beware: What questions you ask while interviewing prospective employees can put you in some hot water if you’re not careful to respect discrimination laws.

The Fair Employment Practices Law guarantees that no person shall be denied the right to work because of his or her race, color, religious creed, national origin, sex, sexual orientation, age (40 years and over), criminal record, mental illness, or handicap/disability.

In order for employers to be in compliance with this law, employers must be careful of what questions are asked during the application and interview process.

Employers with fewer than six employees are not subject to this law, nor are certain religious employers, clubs that are exclusively social, or fraternal associations or corporations, if such club, association, or corporation is not organized for private profit.

During the interview process employers must be watchful of not asking any question designed to elicit a response from the applicant that would reveal the protected information listed above (i.e. one’s race).

In order to assist employers with the interview process, I have identified common interview questions, listed below, that are permissible under the law and common interview questions that are not permissible under the law.

On most occasions, employers appear to ask so-called impermissible questions not with the intent of asking a question they know is in violation of the law, but through their own ignorance of not knowing the law.

Although the employer may feel he or she is innocent or has good intentions in asking an applicant an impermissible question, a qualified applicant not hired after an interview who was asked such a question may feel he or she was not hired for the position due to the answer he or she provided to that impermissible question.

As a result, the penalty imposed upon the employer for asking such a question to an applicant is the potential for a lawsuit.

With regard to age, an employer may ask whether you a minor (under the age of 18) or ask for proof that you are 18 or over. An employer may not ask when you were born, how old you are, or whether you are over 40.

With regard to one’s criminal record, an employer may ask: Have you ever been convicted of a felony? Within the last five years have you been convicted of, or released from incarceration for a misdemeanor which was not a first offense for drunkenness, simple assault, speeding, a minor traffic violation, an affray, or disturbing the peace? An employer may not ask: Have you ever been arrested or ever been convicted of a misdemeanor? Also, an employer cannot request a copy of your arrest or probation record.
With regard to immigrant status, an employer may ask: Are you legally authorized to work in the U.S.? The federal Immigration Reform and Control Act of 1986 (IRCA) requires employers to ask all employees hired after November 6, 1986 to produce documentation proving that they are authorized to work in the U.S.

This information may be requested only after an offer of employment has been made. Employers must be careful to accept all types of documentation permitted under IRCA.

However, employers must be cautious, information obtained through compliance with IRCA may not be used to discriminate on the basis of national origin, nor may it be kept with the employee’s personnel records.

Documentation proving work authorization must be requested of all new employees, not just those who are “foreign-looking”.

With regard to handicap/disability, an employer may not ask any question which would elicit whether the applicant has a disability.

This area of law has newly evolved, especially since the emergence of the Americans with Disabilities Act of 1990 (ADA). Under the ADA, an employer may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer.

Employers may ask about an applicant’s ability to perform specific job functions.

For example, an employer may state the physical requirements of a job (such as the ability to lift a certain amount of weight, or the ability to climb ladders), and ask if an applicant can satisfy these requirements. Employers may ask applicants to describe or demonstrate how they would perform job tasks.

Employers may not ask if an applicant has any handicap/disability or if the applicant has a job-related handicap/limitation that would prevent the applicant from doing the job.

Further, an employer may not ask whether the applicant ever received Workers’ Compensation or has ever been hospitalized.

An employer may not ask whether an applicant will need reasonable accommodation for a job.
The reason being that the question would elicit whether the applicant has a disability. However, when an employer could reasonably believe that an applicant will need reasonable accommodation to perform the functions of the job, the employer may ask that applicant certain limited questions.

Specifically, the employer may ask whether she or he needs reasonable accommodations and what type of reasonable accommodation would be needed to perform the functions of the job.

The employer could ask these questions if:

the employer reasonably believes the applicant will need reasonable accommodation because of an obvious disability;

the employer reasonably believes the applicant will need reasonable accommodation because of a hidden disability that the applicant has voluntarily disclosed to the employer; or

an applicant has voluntarily disclosed to the employer that he or she needs reasonable accommodation to perform the job.

For example, an individual with diabetes applying for a receptionist position voluntarily disclosed that she will need periodic breaks to take medication.

The employer may ask the applicant questions about the reasonable accommodation such as how often she will need breaks, and how long the breaks must be. Of course, the employer may not ask any questions about the underlying physical condition.

The employer may not ask reasonable accommodation questions that are unrelated to job functions such as, “Will you need reasonable accommodation to get to the cafeteria?”

Employers may ask applicants about their certifications and licenses. Employers may ask whether the applicant can meet the employer’s attendance requirements or if the applicant takes illegal drugs.

The dos and don’ts during the interview is critical. Be smart, and cognizant about your questions. Employers should consider having a list of questions to ask each applicant.

Of course, it would be wise to have such a list reviewed by an attorney to be sure the questions comply with the law.