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October 13,
2003
The Astron Road Show
Jennifer Loftus and Michael Maciekowich will be at next
week's ASHHRA Region 1 conference in Hyannis, MA. Be sure to
stop by the Astron booth (#47) to say hello and learn about
EasyEval, Astron's automated performance appraisal system
using Microsoft Excel. For more information on the
conference, held October 19 - 21 at the Sheraton Hyannis,
please
e-mail Jennifer.
You Asked What?! Tips
for Legally Compliant Interviews
Legal
restrictions regarding employment interviews have some
employers tongue-tied. In this Astronology, we explore the
voluminous legislation regarding legally compliant
interviews.
Before you delve into the don'ts, we suggest one simple rule
of thumb for interviewers: only ask questions that are
job-related. The Equal
Employment Opportunity Commission (EEOC) regulates
such matters, and, in the event of a discrimination claim,
they will look for an employer to demonstrate a job-related
necessity behind the relevant question(s).
Personal questions related to race, gender, age, national
origin, religion, or disabilities are to be avoided unless
they relate directly to a bona fide occupational
qualification or are required by law. Remember that intent
to discriminate is only part of the equation, as questions
that may statistically
weed out protected classes may also be considered
discriminatory.
Asking different questions of different groups of persons
(men vs. women, older vs. younger applicants) is also
discriminatory. Ensure consistent hiring practices and focus
discussion on the job in question, and the following caveats
should be happily irrelevant.
Questions about race are almost always unlawful. According
to the EEOC, requesting information "which discloses or
tends to disclose an applicant's race suggests that race
will be unlawfully used as a basis for hiring." The
exception:
[E]mployers may legitimately
need information about their employees' or applicants' race
for affirmative action purposes and/or to track applicant
flow. One way to obtain racial information and
simultaneously guard against discriminatory selection is for
employers to use "tear-off sheets" for the identification of
an applicant's race. After the applicant completes the
application and the tear-off portion, the employer separates
the tear-off sheet from the application and does not use it
in the selection process.
It is permissible to ask if an applicant is legally
employable in the United States. Specific questions about
national origin or U.S. citizenship are unlawful.
Setting restrictions based on English proficiency or
accented English should be carefully considered. Again, a
job-related need for fluent or unaccented English must be
clearly demonstrable.
It is unlawful to ask gender-based questions during the
interview process. Questions about marital status, children,
childcare arrangements, pregnancies, etc. should not be
asked.
While asking for an applicant's age or date of birth is not
specifically prohibited, it may deter older workers from
applying, or otherwise indicate intent to discriminate.
Avoid inquiry through direct (How old are you?) or indirect
means (What year did you graduate from high school?). If
child labor laws are the concern, ask, "Are you over [x
age]?" Age preferences or specifications in job notices or
advertisements are illegal, making such terms as "recent
graduate preferred" unacceptable.
Religious institutions may give preference to members of
their own religion, but all other questions regarding
religious beliefs or affiliation are prohibited.
The Americans with Disabilities Act (ADA) of 1990 specifies
that questions related to an applicant's disability may only
be asked after a
conditional job offer is made. After a description of the
interview process, employers may inquire if any setting or
equipment will aid the applicant in the process. Likewise,
they may inform the applicant about the essential functions
of the job and inquire if the applicant is able to perform
them.
Certain state and municipal laws forbid questions regarding
an applicant's sexual preferences. As they can scarcely be
job-related, they are strongly discouraged in any case.
Height and weight inquiries, unless directly job-related,
may support other discrimination claims. Interestingly,
State Representative Bryon Rushing of Massachusetts has
recently proposed legislation that would prohibit employment
discrimination on the basis of weight.
While arrests should be of no concern to employers,
job-related questions regarding an applicant's conviction
record are permitted. According to the EEOC, employers must
consider three factors to justify use of a conviction
record:
- Nature and gravity of
the offense for which convicted;
- Amount of time that has
elapsed since the applicant's conviction and/or
completion of sentence; and
- The nature of the job
in question as it relates to the nature of the offense
committed.
Judgments on financial status (via credit reports, etc.)
should be restricted to applicants for jobs in which a
candidate would be given access to financial information or
funds. Otherwise, job-related necessity may be difficult to
prove. Discrimination on the basis of bankruptcy is
unlawful.
But that's not all! The list of topics that could land you
and your managers in legal difficulties continues:
- Questions about a
candidate's worker's compensation history are
inappropriate before an offer.
- Questions about
ownership of a home or vehicle are inappropriate.
- Under the National
Labor Relations Act, discrimination on the basis of
union affiliation is unlawful.
- Unless a driver's
license is required for the job, avoid asking about it,
as it could statistically screen out protected classes.
- Questions about
training received in the military and what branch an
applicant served in are acceptable. Seeking specifics,
such as nature of discharge or dates of service, is
unacceptable.
- Questions about any
medical condition are inappropriate.
- Rather than inquiring
if an applicant smokes, describe the smoking policy, and
ask if he or she can adhere to it. Some state laws
prohibit an employer from excluding applicants for
smoking.
- Inquiring about
association with present employees, whether to encourage
or prohibit employment of their friends and relatives,
may be found discriminatory.
- Collecting names of
emergency contacts is inappropriate in the pre-offer
stage.
Want to steer clear of employment-related lawsuits? Remember
that your company will be held responsible for the actions
of its managers and employees, and train your managers on
proper interview techniques.
Wonder what your fellow readers think about critical HR topics? Is your organization unique from or similar to others?
Click here to view the results of our past polls!
If you have a topic you would like addressed in Astronology, or some feedback on a past article, don't hesitate to tell us! Simply reply to this e-mail. See your question answered, or comments addressed, in an upcoming issue of Astronology.
Looking for a top-notch presenter for your human resource organization's meeting? Both Jennifer Loftus and Michael Maciekowich present highly-rated sessions on a variety of compensation and employee retention issues. For more information, send an e-mail to
info@astronsolutions.com.
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Copyright 2007, Astron Solutions, LLC
ISSN Number 1549-0467
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