More Ways to Avoid Turning Your Applicants Into Litigants

Yesterday, we gave our first five tips on avoiding litigation in the job application process. While there are no illegal questions – ones where an employer is liable just by asking – there are questions which elicit information upon which it would be unlawful to base a hiring decision. These are the questions to avoid because a litigious unsuccessful candidate will use those questions as evidence of discrimination. Here is the rest of our list as well as additional tips for employers to avoid problems in their hiring process:

6. CRIMINAL RECORD:

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.

New legislation on criminal background checks may significantly impact an employer’s practice of inquiring in this area. See our blog post on that subject here.

7. RELIGION:

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.

8. RESIDENCE:

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.

9. PHOTOGRAPHS:

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.

10. DRUGS AND ALCOHOL:

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.

11. EDUCATION:

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.  As we mentioned before, inquiries regarding graduation dates may be perceived as a sideways inquiry about age. It’s acceptable to ask about experience in a particular field, but it is best to avoid questions that relate only to the passage of time.

12. ADDITIONAL ACCEPTABLE QUESTIONS:

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?

13. ADDITIONAL INTERVIEW TIPS

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.