December 10, 2005

Employers can be sued in connection with decisions not to hire a prospective employee or not to promote an existing employee based on conduct that occurs in a job interview. The good news for employers is that most of the reported cases involving actions arising out of a job interview have eventually been resolved in favor of the employer. However, such cases undoubtedly cost employers substantial legal fees. Also, many cases are settled prior to trial at a significant cost to employers. Clearly, it is a better idea to avoid situations that can give rise to claims instead of defending such claims in court.

Job interviews are dangerous for employers because they often occur between the applicant and one representative of the employer behind closed doors. What goes on in an interview can become a game of “he said, she said.” Also, many employers do not have written job descriptions or written guidelines identifying appropriate interview questions. This results in a lack of certainty by the interviewer about the expectations and requirements of the position. It can also result in well meaning questions that nonetheless may be problematic under Title VII.

An employer can take a number of steps to avoid problems in job interviews.

Analyze the Skills and Education Required

Employers should first analyze what skills, background, education or training it requires for a position. Those requirements should be closely related to the actual work performed in the position. For example, English proficiency is certainly a requisite skill for a receptionist, but it may not be necessary for some construction jobs.

Write Down and Distribute the Requirements for the Job

The requirements should be committed to writing and should be distributed to the employer’s interviewers and to anyone involved in a hiring decision.

Enforce the Requirements

The requirements should be evenly applied. If an employer has written requirements and has hired individuals from a certain racial or ethnic group who do not qualify, an employer could open itself up to members of other groups who have been rejected allegedly based upon the lack of those qualifications.

Educate the Interviewers

Interviewers must be aware that certain questions may give rise to Title VII claims. Of course, merely asking a question that seems to inquire about a protected class is not, in itself, a Title VII violation. However, making a decision not to hire or promote based on information gathered during an interview that relates to a protected class may be a Title VII violation. The fact that the question is asked can provide evidence that the employer used the answer to that question in making an employment decision. For that reason, it is a better practice to avoid questions that seek out information pertaining to the applicant’s membership in a protected class.

Avoid Questions on Protected Classes

The following topics should generally be avoided in an interview:

• The applicant’s age including, for example, when they graduated from high school (40 years of age and older are protected by the Age Discrimination in Employment Act)
• The applicant’s marital status, number of children, childcare plans, and expectations for having children (Pregnancy Discrimination Act and Title VII)
• Religion, religious traditions or holidays (Title VII)
• Social fraternities or organizations (may elicit information relating to race or national origin – Title VII). Inquiring about professional organizations is permissible.
• Birthplace of applicant (National origin - Title VII)
• Worker’s compensation claims, Medical problems or medical history (Americans with Disabilities Act)

Employers have a valid reason to want to know whether an applicant is unable to perform the attendance requirements, physical requirements and other requirements of the job. However, employers should not inquire specifically about medical history, family status, religious requirements, or other matters noted above. Rather, employers should ask broadly about the applicant’s ability to perform the essential functions and requirements of the job and subsequently address any issues raised by the responses provided by the applicant.

Prepare Written, Objective Evaluations

To assist in responding to any challenges to the interview, employers should also complete a written evaluation of each interviewee which incorporates objective criteria, such as ranking the applicant on a scale of 1 to 10 based on his or her qualifications.

Elaine Howard is a partner in the Litigation and Labor and Employment section of Jackson Walker. To learn more about how Ms. Howard can assist you with your Labor and Employment issues or concerns, click here. (http://www.jw.com/site/jsp/attyinfo.jsp?id=129)

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