Employment Discrimination Pitfalls

By Bradley Hunt, Attorney

As a general rule, information requested and obtained during the employment process should be limited to those pieces of information essential for determining if a person is qualified for the job. Information regarding race, sex, national origin, age, and religion are irrelevant in such determinations. Employers are also prohibited from making pre-employment inquiries about a person’s disability, other than regarding a prospective employee’s ability to perform the “essential functions of the job.” Such essential functions should be spelled out in a written, detailed job description.

It is easy to understand that most employers have legitimate concerns about a person and their abilities and therefore it is easy for potential employers to ask the wrong questions of a job candidate. The problem is often that the concerns are addressed in the wrong way. Say, for instance, you are concerned about someone’s character, or you want to know if the employee will be prone to excessive tardiness or absenteeism, or you want to know if the candidate will remain with the company for a reasonable period of time, or you may want to know the job candidate’s health or health history. There are ways to handle interviewing a potential employee so that you get the information you need to consider them for the job without asking the candidate questions that are considered discriminatory.

There is an easy way to tell if your question to a job candidate is not discriminatory; ask yourself: 1) does this information have an adverse impact on any protected group? 2) is there a business necessity behind the question? Some selection procedures have an adverse impact on members of a protected class in that the selection procedure may eliminate them from the job illegally. In determining if there a business necessity, is the question you asked the job candidate necessary to determine if the person can really do the job?

Another way to figure out what type of questions you may ask a job candidate is to know some questions that you should NOT ask:

  1. How old are you? When were you born?
  2. Are you married? What is your spouse’s name?
  3. Do you have any children? How old are your children? Do you plan to have more children?
  4. Are you pregnant? Do you plan to become pregnant soon?
  5. What is your weight? How tall are you?
  6. Are you currently in the military? If you were in the military, how were you discharged?
  7. Do you attend church? What is your religion? What about religious holidays?
  8. Are you a U.S. Citizen? Where were you born?
  9. Are you disabled? If you are disabled, how are you disabled?
  10. Have you ever filed a worker’s compensation claim before?
  11. Have you ever been treated for a mental health, drug or alcohol related problem?
  12. How many days were you sick last year?

General rules of thumb:

  • Ask only for information you intend to use in making a hiring decision.
  • Know how you will use the information to make that decision.
  • Recognize that it is difficult to defend the practice of seeking information which is not used.

It is also common for employers to conduct criminal background checks on prospective employees. In the event a criminal background check reveals previous charges and/or convictions against a prospective employee, such charges/convictions should not be used as an automatic disqualification for employment. Your human resources department will need to review the charges and/or convictions and make an independent determination as to whether or not the prospective employee is qualified for employment despite the criminal history, taking into consideration, among other things, whether the individual poses a threat to customers or personnel or has demonstrated that he or she does not have the integrity or honesty to fulfill the duties of the position. The following factors should be considered in making this determination: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job sought.

If your company is ever faced with a discrimination lawsuit or complaint, I recommend that you consult with an employment law attorney.