Thorny issues in hiring - illegal job interview topics - includes related articles

Nation's Business, April, 1996 by Laura M. Litvan

Prospective employees are more aware o f their rights than ever, so employers need to be, too.

Workplaces can harbor personnel pitfalls, as many small-business managers have discovered--often the hard way. And hiring is one area that can be particularly tricky. Employment-law attorneys say it's especially important these days for employers to take steps to avoid legal complications by re-examining the types of questions they ask potential new hires.

For years, lawyers have counseled their clients to avoid questions that relate to age, sex, race, religion, national origin, or dis; ability--areas covered by federal civi-lrights laws. But even the most savvy companies make basic mistakes that can open the door to civil-rights charges. For example, while conducting a recent seminar about interviewing practices for employers, Clifford M. Keen Jr., an associate professor of business law at the University of New Orleans, was surprised when one corporate executive asked if it is permissible to inquire about an applicant's birth date.

Such a question is 'prohibited by a 29-year-old federal ban on age discrimination as well as by age-bias statutes in many states. Nevertheless, many employers continue to ask about age on application forms and in face-to-face interviews, says Koen.

In some states, civil-rights statutes go further than federal law, protecting job applicants from bias based on sexual orientation, smoking during off-the-job hours, or other factors.

"The general rule for any inquiry," Koen says, "is simply this: Is this job-related? There's no reason to even let other issues enter into the conversation."

A big catch for some managers is that many questions that would seem to be only marginally related to protected areas are laced with potential liability, says Theresa Donahue Egler, a partner specializing in employment law with the Morristown, N.J., firm of Pitney, Hardin, Kipp and Szuch. For instance, she tells clients they should not even ask job candidates when they graduated from college or high school. While it's not exactly the same as asking applicants how old they are, it's close, she points out.

Another common mistake in interviewing is to ask a female applicant if she plans to start a family or, if she already has one, about child-care arrangements, says Doug McDowell, general counsel for the Equal Employment Advisory Council, an employer group in Washington, D.C., that tracks employment-law matters. If the job requires long hours, then simply ask applicants--regardless of their sex--about their ability to fulfill the need for extensive overtime work, he says.

The law that has really raised the stakes for employers, however, is the Americans with Disabilities Act (ADA) of 1990, attorneys say. The chief goal of this newest of the nation's fair-employment laws is to remove the employment barriers that have confronted people with disabilities. The ADA has focused more specifically on the hiring process than have other major civilrights laws.

The ADA says that an employer generally may not ask a potential hire disability-related questions or require a medical examination until after a conditional job offer has been tendered. A company may refuse to hire someone because of a disability only if that disability might prevent the person from performing the "essential functions" of the job. The ADA generally requires an employer to make accommodations that would enable a disabled employee to perform the required duties.

Since the employment provisions of the law went into effect in July 1992, employers have complained of confusion over the types of questions they can ask job applicants without running afoul of the statute. This past October, the U.S. Equal Employment Opportunity Commission released longawaited final guidelines that address the issue of pre-employment questioning.

Most notably, says attorney Egler, the final guidelines open the door to some prehiring discussion that had been ruled out under draft guidelines released in 1994.

Under October's final guidelines, an employer and applicant now may talk in practical terms about the types of accommodations an applicant might need if he or she were to get the job. Such discussion can occur, however, only if an applicant's disability is obvious or if it is voluntarily disclosed by the job candidate. The discussion must be limited, though, to accommodations needed to help the employee perform the essential tasks of the job. (To obtain a copy of the guidelines and for information off other resources, see the box at right.)

The disabilities law, with its language about "essential functions of the job," has underscored the need for employers to have written descriptions of the key requirements of all jobs they offer, says Fred Steingold, an employment-law attorney in Ann Arbor, Mich.

The use of written job descriptions, which objectively state essential functions of positions, can lead to a more objective and consistent approach in dealing with applicants, he says. Written descriptions also can serve as evidence of a company's efforts to treat applicants fairly if the business's hiring practices come into question, he says. He adds that "some small companies still don't have job descriptions, and I think that's a mistake."