There’s no question employers walk a tight rope during the hiring process. Between knowing which questions are considered discriminatory in nature under both federal and state laws to ensuring inappropriate comments aren’t uttered during a job interview, employers need to be careful nothing they say or do during the hiring process could lead to claims of discrimination.
For starters, employers should familiarize themselves with the bevy of statutes and regulations pertaining to the hiring process. Fortunately, much of the necessary information can be found on the Internet. Documents containing pertinent guidelines include:
• Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin; • The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination; • The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older; • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments; • Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; • Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and • The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. The EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.
Free legal advice Scott Young, an employment law attorney licensed in Ohio and Washington, DC advises employers to “avoid pre-employment inquiries that are not job-related. Don’t ask questions about age, gender, religion or national origin.” According to Young, these topics are considered a person’s “key protected characteristics.”
Young, a partner with Thompson Hine, also suggests shying away from inquiries regarding a job applicant’s criminal history. However, if an employer feels compelled to ask questions about the candidate’s arrest and conviction record, they should be certain their inquiries “relate to the individual’s ability to do the job.”
Thinking about asking if the candidate was ever a member of a union? Don’t, says Young. While it might be useful to know if the job applicant has a history of filing employment discrimination or unemployment claims against their employers, Scott says asking those questions is a bad idea.
Julie M. Young (no relation to Scott Young), an employment law attorney with the Columbus law firm of Caroline Worley Law LLC, has other suggestions for employers seeking to avoid discrimination lawsuits stemming from the interview process.
In these days of Bruce Jenner revealing he feels more female than male, it’s important to know “there is a difference between gender identity and sex. You can’t ask if a person is a male or female unless you can show a particular race, religion or gender is a bona fide job qualification, which is nearly impossible to show except maybe for religious institutions,” she says.
Another question to avoid relates to the job candidate’s American citizenship. Don’t ask it unless being an American citizen is a bona fide job qualification, although there aren’t too many jobs that necessitate American citizenship. However, notes Young, “you can ask if the candidate is authorized to work in the United States.”
Oral vs. written Interview questions can be discriminatory in nature regardless of whether they are posed in writing or orally, says Julie Young.
Asking written interview questions is favored for at least one reason: it offers a written record of what was asked. If a face-to-face interview is conducted, whether in person, over the phone or the Internet, Scott Young advises the employer to have at least one other person in on the discussion. “It’s a recommended practice for the employer to have interviews conducted by more than one individual so there’s a witness of what’s being asked of the candidate,” he says. While that’s not always practicable, it is something to strive for, he says.
In sum Even after consulting the various federal statutes governing employment discrimination, Scott Young advises employers to check for applicable state laws and even case law that also apply.