Tuesday, December 16, 2014

How to Keep Job Applicants from Becoming Future Litigants

Acceptable v. Unacceptable Questions

Everyone knows there are certain questions that an interviewer avoids when talking with a job candidate.  To assist you in keeping your job applicants from becoming future litigants, the following are examples of acceptable and unacceptable questions to ask during an interview.

1. AGE:

Acceptable questions: 
- Do you meet the minimum age requirement for employment?
- As a minor, can you provide proof of age in the form of a work permit?

Unacceptable questions:
- When did you graduate from high school/college?
- In what year were you born?

While it is important to determine that a candidate is old enough to be employed, questions regarding date of graduation or year of birth suggest an inquiry about age, which is an impermissible basis on which to make a hiring decision.


Acceptable questions:
- Consistent with our obligation to provide information to the federal government on each newly hired employee, if hired can you provide proof that you are able to be employed in this country?
- Do you have fluency in any other languages?  (ONLY if this is an identified requirement or will enhance a candidate's ability to do the job).

Unacceptable questions:
- You have an unusual name, what ethnic background does it reflect?
- What clubs do you belong to?
- What is your ancestry?
- Where were you born?
- Are you a citizen of the U.S.?

A legal inquiry extends only to information necessary for the employer to determine whether a candidate can legally work in the U.S. Questions about ancestry, place of birth, etc., can be construed to be discrimination based on the candidate's national origin.

Inquiries regarding clubs or social organizations of which a candidate is a member are generally troublesome because clubs membership is most likely not related to job skills or abilities and may be seen as a way in which an employer is trying to identify ethnic heritage or origin.  It is best not to question applicants on this subject during an interview, but to have the following question on the job application:  "List all job-related organizations or clubs to which you belong excluding those which may identify your race, color, religion, national origin, age, disability or sexual orientation."


Acceptable questions:
- Do any circumstances exist which will prevent you from meeting our anticipated work schedules?
- This job may require occasional travel, will you be able to fulfill that requirement?
- Do you have a spouse or family member that works for this organization?  (This may be asked only if related to an anti-nepotism policy which is in place with the organization at the time of the interview).

Unacceptable questions:
- Will your spouse allow you to travel?
- Are you married?
- Do you have children?
- What are your child care arrangements?
- What is the name and relationship of a relative or individual to be notified in case of emergency?  (This should not be asked on an application for employment or at an interview.  Employers should have an "emergency contact" form to be filled out by employees upon hire).

Most employers avoid questions which could be construed to be related to a candidate's marital status instead of his or her qualifications. It is reasonable, though, to determine in the interview whether any situations exist (which could be child care, spouse preference, etc.) that would prevent an employee from discharging his or her duties.  It is important, however, to keep the questions closely related to the job responsibilities rather than the candidate as an individual.  Moreover, if an applicant raises the issue of family, do not pursue the topic with follow-up questions.  It is not a legal defense to say "well, the applicant brought it up."  Even where a candidate volunteers that he has three children, employer's should not ask what the child care arrangements are.  Further, the interviewer should not write down that the employee divulged that he has three children in his or her interview notes.  The more the interviewer learns about impermissible issues, the more difficult it will be to defend to a jury that the information did not play a role in the decision to not hire the applicant.


Acceptable questions: 
- Are you able to perform the essential functions of the job to which you are applying with or without a reasonable accommodation? (This question assumes that the applicant has a job description or has been informed of the essential functions of the position.)
- Specific questions as to how an applicant will perform functions of the job are also permissible.  For instance, how will you complete our inventory forms?  Can you lift 50 pounds and walk for 100 feet?  (If these are essential functions).

Unacceptable questions:
- Do you have any disabilities?
- Are you physically fit?
- How many sick days did you take last year?
- Have you ever been treated for [back problems] [mental illness]?

Again, employers are sensitive to the problems that can arise when an applicant is asked about physical or mental disabilities.  It is appropriate, though, to make sure that an employee can discharge the essential functions of the job.  In order to make these inquiries, a job description or a list of essential functions is necessary.  While questions regarding attendance at a prior job can alert the employer to potential future attendance problems, employers should avoid inquiring about the nature of the absences as any part of a hiring decision.


Acceptable questions:
- Do you have any work experience in the U. S. armed forces which may enhance your ability to do the job for which you are applying?

Unacceptable questions:
- Did you serve in the military?
- If you served in the military, were you honorably discharged?

While not as prevalent, applicants can make a claim of discrimination based on military service.  Avoid any questions that are not related strictly to the applicant's skills or experience.


Acceptable questions:
- Have you ever been convicted of [a felony] [one of a list of enumerated crimes]?  (These crimes should be related to public trust or ability to perform the job in question.)  

Unacceptable question:
- Have you ever been arrested?

While government entities can argue that as employers they have a greater need to know of past criminal convictions because their employees are responsible for public funds or assets and/or must retain the trust of the community, information on arrests is conclusive of nothing and cannot be a hiring factor.

No state law requires a municipality to conduct criminal background checks, unlike park districts and school districts, which are required to request background checks on employees.  At the same time, no state law prohibits a municipality from conducting criminal background checks.  The Illinois Uniform Conviction Information Act, 20 ILCS 2635/1 et seq., assumes that such requests will come from municipalities, among other agencies:  "All persons, state agencies and units of local government shall have access to inspect, examine and reproduce such information, in accordance with this Act."  20 ILCS 2635/5.

Federal law is similar to Illinois law in that there is no prohibition of criminal background checks, but employers must be careful how such information is used, so as to avoid civil rights violations.  As a general rule, an employer cannot consider an arrest or conviction record that is unrelated to the employee's job.  Thus, a conviction for embezzlement would be relevant to the hiring of an employee who would handle cash.  Convictions for numerous driving violations would legitimately bear on the hiring of an employee who would drive municipal vehicles.

The federal courts have examined the issue of arrest and conviction records in Title VII discrimination cases.  An employer has no duty to investigate criminal background information.  Ernst v. Parkshore Club Apartments, 863 F.Supp. 651 (N.D. Ill. 1994). If an employer chooses to inquire about criminal background, a refusal to hire persons who have been arrested but not convicted has been generally disapproved because of its proven adverse racial impact.  Watkins v. City of Chicago, 73 F.Supp.2d 944 (N.D. Ill. 1999).  If an applicant for employment can demonstrate a causal link between the employer's consideration of criminal records and a statistical racial disparity in the employer's workforce, then the applicant can assert a civil rights claim for disparate impact  under Title VII.  Id.


Acceptable question:
- Are you able to work on weekends if necessary?

Unacceptable questions:
- Will you need to take off for religious holidays?
- Does your religion prevent you from working on certain days?

Again, while it is appropriate to learn if any circumstances exist which may impact on a candidate's willingness or ability to work at certain times or places, the inquiry should remain neutral and not related to religion.


Acceptable question:
- Can you meet the residency requirement for this job?  (If a residency requirement exists).

Unacceptable questions:
- Where do you live?
- Do you rent or own?
- How long have you lived at that address?
- Who do you live with?

Some courts have found that an inquiry into a candidate's home ownership or community is a pretext for an inquiry into their national origin or marital status, both of which are prohibited.


Acceptable question:
- If you become employed with our agency, do you agree to being photographed for employee identification purposes?

Unacceptable question:
- Can you provide a photo along with your resume and other application documents?

Requiring a photo of a candidate prior to employment allows the inference to be raised that a candidate's appearance (and any racial or ethnic origin that may be derived or inferred from it) is a factor in hiring.  Clearly, a post-employment photo is appropriate for employee identification purposes.


Acceptable questions:
- Do you take illegal drugs?
- Do you understand that part of the pre-employment process is a drug and     alcohol screen?

Unacceptable question:
- Have you ever been treated for drug or alcohol abuse?

Recovering alcoholics and former substance abusers, who no longer actively use illegal substances are protected under the ADA.  Questions which indicate that former drug use or abuse of alcohol may preclude a candidate from employment can expose the employer to liability under the ADA.  A pre-employment drug/alcohol screen should reveal any drug use.


Acceptable questions:
- Do you have an accounting degree?  (only where such degree is demonstrably related to the job).

Unacceptable questions:
- What year did you graduate high school?

All questions or requirements regarding education, degrees received, or names of schools attended may only be asked where such requirements are related to the position.


General acceptable questions, depending on the particular job for which the candidate is interviewing can include the following:

- What duties have you performed on past jobs?

- What are your short or long term career goals?

- Why are you interested in this organization?

- What special qualifications do you have for this job?

- What are your greatest strengths and weaknesses?

- Do you have any questions for me about this job or our organization?


It is important for each candidate to be asked the same questions, even if it appears that the question is unnecessary.  For example a candidate that appears very able bodied should still be asked whether he or she can perform the essential functions of the job with or without a reasonable accommodation.  Similarly, problems could arise if the employer asks only the pregnant candidate whether she can work the expected schedule.  While it is almost impossible to conduct each interview for a position in the exact same fashion, the more an interviewer contains their questions to the standard, prepared text, the greater defense the employer will have in the event that an unsuccessful candidate brings a charge of discrimination.  After the interview is complete, and even after a candidate is selected, retain all notes from interviews along with the applications.

Labor and employment laws often undergo changes in interpretation by the courts.  To ensure your employment practices always conform with current law, consult with attorneys who are experts in the field of labor and employment law.  The labor and employment group at Ancel Glink can advise you in all employment related matters.