Introduction

The hiring process has numerous legal pitfalls for the unwary employers and applicants.  A complex framework of federal and state law strikes a balance between protecting the civil rights of job seekers and the legitimate interests of employers when hiring a qualified, productive worker. Employers and applicants should familiarize themselves with basic requirements of employment law principles regarding discrimination in hiring, background and reference checks, and pre-employment exams and testing.

Federal and state laws prohibit discrimination in hiring on the basis of race, color, religion, sex, national origin, disability, age, and participation in the military reserves. In addition, some state discrimination and privacy laws prohibit discrimination on the basis of sexual orientation, marital status and arrest and conviction records. Throughout the hiring process, an employer should guard against weeding out candidates based upon these protected categories, or giving the appearance thereof. The following outline highlights some essential guidelines for maneuvering through the pitfalls mentioned above.

Position Descriptions and Advertisement

The first step in the hiring process frequently involves placing an ad in a local newspaper or posting an open position on the company bulletin board or website. Before announcing an open position, however, an employer must carefully analyze each available job to determine the essential core requirements of the position and the necessary qualifications of any applicants. While employers may believe the ideal candidate is a Jack or Jill of all trades, a written job description should honestly and reasonably assess necessary qualifications and core job requirements so as not to unlawfully exclude individuals who may otherwise be qualified. For example, it may be unreasonable to require applicants for a clerical position to demonstrate that they can lift 50 pounds or to expect a courier to type 60 words per minute.

All job postings or advertisements should describe the specific duties and qualifications of a position rather than using language that may indicate a preference for persons outside of the protected categories, such as age or gender. For example, an advertisement may discourage eligible older candidates if it reads, “Looking for work on your summer break from school? Tour operator seeks energetic and enthusiastic guide for bus and walking tours.” Instead, it would be more appropriate to list actual skill or competency requirements in neutral terms, such as indicating that a valid driver’s license or an ability to communicate effectively is necessary. In addition, it’s a good idea to include language indicating that the advertiser is an equal opportunity employer.

Job applications

Requiring applicants to complete job applications is a helpful method of screening applicants prior to an interview. Employers should regularly review and modify their job applications to comply with changing federal and state laws and to eliminate unnecessary inquiries into the candidate’s membership in one or more of the legally protected classes, such as sex, race, age, etc.

Employers can request the following information in the job application form:

~ Name, address, telephone number and social security number of applicant.

~ Date of application, positions sought and salary requirements.

~ Relevant work experience and education.

~ Information about other names used by applicant for purposes of checking references.

~ Notices of any pre-employment exams or investigations, such as drug tests, credit checks, reference checks, education inquiries and medical exams.

~ Appropriate releases and authorizations for pre-employment exams or investigations, as discussed in more detail below.

~ Notification that employer is an Equal Opportunity Employer.

~ Additional experience, certifications or special training that the applicant wishes to add for consideration.

Eliminating unnecessary inquiries into the candidate’s personal life or memberships in protected classes is one of the best methods of ensuring that a candidate is judged solely by legitimate qualifications. The following information should never be requested in a job application:

~ A photograph of the applicant because a photograph may reveal the physical characteristics, including age, race, gender and national origin of the applicant.

~ Information about past workers’ compensation claims or physical or mental disabilities.

~ Inquiries that may reveal an applicant’s age, such as date of birth and ages of children. Dates of graduation from school should only be requested if the employer consistently contacts schools for verification of education as a part of a reference checking policy. It is permissible to ask if the employee is at least 18 years of age in order to comply with child labor laws.

~ Inquiries into an employee’s citizenship or ability to work in the United States. According to the Immigration Reform and Control Act, an employer may advise applicants that it will require the completion of an I-9 form. For more information, contact the Immigration and Naturalization Service. (www.ins.usdoj.gov)

Interview questions

Interview questions must be framed carefully to avoid unlawfully soliciting information about the applicant’s membership in a protected class. Unlawful questions may give the appearance of discrimination, even if the employer’s intentions are benign. In addition to the guidelines outlined above for job application forms, interviewers should take care not to solicit the following information:

Don’t ask the applicant about their medical conditions before making an offer of employment. Instead, do ask whether an applicant can perform specific job functions, such as climbing a ladder or bending frequently.

Don’t ask the applicant if he or she has ever filed a Workers’ Compensation claim.

Don’t ask an applicant if he or she needs an accommodation to perform a job. Do ask the applicant if he can perform certain functions, such as lifting or bending, with or without a reasonable accommodation.

Don’t ask questions about an applicant’s use of medications.

Don’t ask whether the applicant is pregnant or planning a family.

Don’t ask the place of birth of the applicant or of the applicant’s family or ancestors.

Don’t ask the applicant for proof of a valid driver’s license unless it is a requirement of the job. This requirement could unnecessarily exclude persons with disabilities such as sight impairments or seizure disorders.

Don’t ask applicants for their marital status.

Don’t ask for a complete list of all clubs or groups to which the applicant belongs because membership could reveal national origin, religion, sexual preferences, age or inclusion in other protected classes. Do ask about volunteer work or other activities that the applicant indicates are relevant to the job duties and qualifications.

Applicants who believe that unlawful information is being solicited by a job application form or during an interview face a difficult dilemma, and must use their instincts to determine how to respond without alienating the interviewer. Leaving an unlawful application question blank or tactfully avoiding an inappropriate interview question is not always possible. Generally, honesty is the best policy during the hiring process, although court decisions are divided on the issue of whether an employee must truthfully answer an unlawful question.

Medical Exams

Under the Americans with Disabilities Act, medical exams or disability related questions are only permitted after an offer of employment. This practice requires employers to be up front about their reasons for rejecting applicants on the basis of their disabilities. In order to comply with the Americans with Disabilities Act, any post-offer medical exam must be requested of all employees in similar positions. Employees may be rejected only on the basis of job related criteria. Results of post-offer medical exams must be kept confidential, and no medical information may be maintained in the employee’s personnel file. The employer should limit communication of any medical information learned during the medical exam to those employees who have a reasonable need to know, such as the hiring supervisor who must determine if an accommodation for the applicant’s disability is appropriate.

Physical agility and physical fitness tests

Under the Americans with Disabilities Act, physical agility and fitness tests are not considered to be medical examinations. Therefore, an employer may require these tests to be taken prior to making an offer of employment. In order to be excluded from the category of “medical exam”, these tests may only measure an ability to perform actual or simulated job duties, and may not measure an individual’s physiological response to the test, such as heart rate or lung capacity. The tests must be related solely to the performance of specific job duties, and cannot be designed to ascertain overall health or to identify potential disabilities.

Drug Testing

Under the Americans with Disabilities Act, tests for the use of illegal drugs are excluded from the stringent requirements of medical examinations under the Act. Nonetheless, privacy laws in some states limit the timing and manner of drug testing. For example, some states require the re-testing of applicants, at their own expense, in the event of a failed drug test. For drug testing requirements in their home states, employers and applicants should contact a local attorney.

Even if not specifically regulated by state law, employers should take great care in the decision to test applicants for the use of illegal drugs. Employers have a legal duty to maintain the confidentiality of any medical information provided by applicants to the testing technicians. To avoid inaccurate results, individuals being tested for illegal drugs will be asked for a list of any prescription or over-the-counter medications that they have ingested in the last few weeks. The laboratory should only provide information about whether the applicant passed or failed the drug screening. For example, information that an applicant is taking insulin or anti-depressants should not be revealed to the employer in order to safeguard against illegal disability discrimination.

The tests should only be given to an applicant after he or she has been offered the position. An independent state-certified laboratory should perform the tests.

 Polygraph tests

Federal and state laws prohibit most employers from requiring applicants to submit to polygraph tests. Some states require employers to notify applicants of this prohibition, either in job postings or on job application forms. Employers should investigate the laws in their home state before introducing a polygraph test requirement.

Background and Reference Checks

Due to the rise in workplace violence and harassment, employers may seek to screen applicants thoroughly by using background and reference checks. Former employers who are concerned about their exposure to defamation claims should they provide a negative reference will often resist these requests. Although defamation claims are usually difficult to prove, many employers now adhere to a strict policy of only providing the names of former employees, the positions held, and dates of employment.

Applicants can provide names of former supervisors or coworkers who are willing to provide individual personal references, rather than directing inquiries to the former employer’s human resources department. In addition, employers may ask an applicant to sign a release authorizing the disclosure of personnel information and holding the former employer harmless for any information provided.

Even if a prospective employer is unable to secure a comprehensive reference, at a minimum, the employer should contact references and educational institutions provided by an applicant to verify the accuracy of a resume and job application.

Credit history checks

Choosing to investigate an applicant’s credit history places additional burdens on employers who seek to discover this highly personal information about an applicant’s financial situation. Medical information that an employer has no right to solicit from an employee prior to an offer of employment may be found in credit reports, including unpaid hospital bills or medical reasons for nonpayment of debt. Before seeking employment, applicants should obtain copies of their credit reports so that they can clear up any misinformation or forgotten debts.

Employers seeking credit history information must provide applicants with a separate notice that states clearly and conspicuously that they intend to perform a credit history check. This notice and authorization for release of credit information should be separate from any release relating to reference checks so that the applicant clearly understands his or her fair credit reporting rights. An explicit provision authorizing release of medical information is required before a credit bureau may release medical information contained in the report.

If a negative credit report removes the applicant from consideration for employment, the employer must provide the applicant with a copy of the report and the “Summary of Consumer Rights,” which the credit bureau must publish and provide. The employer must advise the applicant that he may obtain a free report within 60 days and that the applicant may dispute any information in the report. The credit bureau must investigate any disputes within 30 days and provide to the applicant a copy of the investigative report and a copy of an updated credit report if it has been changed as a result of the investigation.

The Federal Trade Commission(www.ftc.gov administers the Fair Credit Reporting Act).

Arrest and conviction records

Most states permit inquiries into convictions of crimes that are directly relevant to qualifications of applicants. For example, a childcare center may be permitted (or required by law) to investigate whether an applicant has been convicted of sexual assault or battery involving minors. State laws vary in their prohibitions against employers taking into account the arrest and conviction records of applicants. Some states only permit inquiries into conviction records while prohibiting questions about arrest records. Other states allow consideration of felonies, but not misdemeanors, or they prohibit consideration of offenses arising before a certain date. Employers should investigate any state or local prohibitions against inquiring into arrest and conviction records.

Complaints and Additional Information

To request additional information or to file a complaint concerning discrimination in the hiring process, contact the nearest Equal Employment Opportunity Commission or the local state agency that handles fair employment practice complaints. Time limits for filing a complaint are different in each state and are often very short. Therefore, an individual who feels unlawfully treated should contact the appropriate state or federal agency as soon as possible to preserve the right to file a claim.

The state and federal agencies that process discrimination claims are also excellent resources for employers who are seeking written guidance materials to distribute to employees and supervisors. Some agencies also provide on site training for employers. The federal Department of Labor (www.dol.gov) and Equal Employment Opportunity Commission (www.eeoc.gov) also distribute several helpful publications that can be downloaded or requested by mail.