IS YOUR QUESTION PROPER?

The interview of potential applicants for employment is usually the key tool utilized in selecting an employee. The interview process, however, has become somewhat akin to employer litigation roulette due to the multitude of laws intended to protect applicants and give applicants an even playing field during the application process.

In general, it is assumed that every bit of information gathered as a result of an interview is used to determine whether or not to hire an applicant. As such, even small talk needs to be within the boundaries set by law. Writings or notes on the employee application or resume, in addition, can become evidence in a discrimination suit or other suit alleging wrongful employer conduct.

There are a host of federal laws which affect interviewing and generally deal with issues of discrimination of one form or another. For instance, Title 7 of the Civil Rights Act of 1964 prohibits employers of 15 or more employees from discriminating based on race, national origin, sex, religion, or color. The Americans with Disabilities Act, applicable to employers of 15 or more employees, prohibits discrimination based on physical or mental disabilities. The Pregnancy Discrimination Act, applicable to employers of 5 or more employees, prohibits discrimination on the basis of pregnancy, child birth or related medical conditions. The Equal Pay Act, for employers engaged in interstate commerce, prohibits pay differentials based on sex. The Vietnam Era Veterans Assistant Act, for employers with government contracts, provides for affirmative action for Vietnam Era Veterans. The Age Discrimination in Employment Act, applicable to employers of 20 or more, prohibits discrimination against employees 40 years of age or older. The Fair Credit Reporting Act limits the use of consumer credit reports for employment purposes.

The State of Maryland has legislation comparable to the above mentioned federal statutes and which in certain circumstances eliminates the employee minimum requirements. In addition, the Maryland Civil Rights Act adds ancestry, physical or mental handicap, or marital status to the list of those matters on the basis of which discrimination is prohibited. It should be noted that counties, cities and municipalities may also have laws, which often are more restrictive than federal law, prohibiting discrimination.

Employers are put in a difficult legal position because they are statutorily prohibited from asking some probing questions. The law does acknowledge that different positions require different characteristics; as a result, some questions may be discriminatory with regard to one position, but not for a different position. There are subject areas which generally are valid areas of inquiry such as knowledge, skills, education, physical abilities, licenses, accreditation, certificates and other job related characteristics. However, these general subject areas should be job related. Matters which often result in law suits are questions concerning race, birth place or citizenship, sex, age, disability, criminal record, political affiliation, credit status, bankruptcy status, familial status, child care arrangements, marital status, color of skin, hair or eyes, medical conditions, general health, illness or receipt of disability benefits or workers compensation, religious beliefs and smoking habits.

One thing is certain, the simplest of questions may have unintended consequences resulting in substantial expenses to an employer. At a minimum before an interview is conducted the interviewer should be trained as to proper interviewing technique, the procedure for the interview should be outlined, questions to be asked should be outlined, and the entire process should constantly be reviewed for legal compliance.