Saturday, November 24, 2012

EMPLOYMENT INTERVIEWS: LEGAL ISSUES


We are going to discuss a few legal concerns when it comes to employment interviews, because it can be easy to say the wrong thing if you are not careful.  Because there is so much information for this topic, I have broken this Interview topic into a few parts.  We already covered the Basic Interview Stages and Preparation.  Legal Issues will be the third part discussing this.  As always, please use the “like” or comment about your own experiences at the bottom.

Document, document, document...

That is an important phrase in an interview setting.  It seems very important in the context of an interview to document everything your candidate says, because that will clearly help you out when making a hiring decision.  However, what if your interviewee expresses a religious preference or a family situation?  Should you write that down?  The answer is NO.  If a candidate volunteers personal and irrelevant personal information, do not write it down, as it could be used against the company in litigation.  If your company goes to court against a candidate, your notes could be used as evidence.  It will fall to the Employer to prove that there was nothing that was discriminatory in the interview.  Do not ask any follow-up questions with regards to that information.  Also, be sure to tell the applicant that the personal information they provided is not job-related and you only want to discuss information relevant to the job interview.

Legal Way to Discriminate

You can discriminate legally.  However, you may only discriminate if it is related to a “Bona Fide Occupational Qualification” (BFOQ).  An example of this is the Apollo astronauts - the space capsules were small and therefore only shorter people were considered for flight.  Was this discriminatory?  Yes.  Was it legal due to the type of job?  Yes.  Per the Cornell University Law website:
Title VII permits you to discriminate on the basis of "religion, sex, or national origin in those instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise." This narrow exception has also been extended to discrimination based on age through the Age Discrimination in Employment Act (ADEA). This exception does not apply to discrimination based on race.
If the position you will be bringing candidates in for has a BFOQ, you will want to ensure that this limiting qualification is laid out in the Job Description and also the job posting.  The most common BFOQ defense relates to safety.  Be very careful with BFOQs as they can open you up for litigation.  If you are ever in question, I would suggest consulting with a lawyer for an expert opinion.

Asking Legal Questions

Continuing with the idea that in a court, you will be required to prove that the employer was not discriminating in the interview, the recruiter or hiring manager will need to be sure that the questions that they ask are legal.  Be sure that your questions are relevant and speaks directly to the job description.  If a candidate may be groomed for other positions later in their career, some interviewers may be tempted to ask questions related to that future job position.  This would be a mistake as those questions may not be relevant to the position that the candidate is immediately interviewing for. 

When developing questions and when asking them, be sure to keep in mind the effect your questions will have on the composition of your workforce.  There is a term known as “Disparate Impact” or “Disparate Effect” where a policy or set of questions may appear neutral, but disproportionally affects one legally protected group more than another.  You want to ensure that you are not unintentionally discriminating against any group through your questions.  Imagine that if you were called to court, how would your questions sound to a group of jurors.

Key Legislation You May Want to Consider Reviewing:
·         Title VII of the Civil Rights Act of 1964 - http://www.eeoc.gov/laws/statutes/titlevii.cfm
·         Equal Pay Act of 1963 - http://www.eeoc.gov/laws/statutes/epa.cfm
·         Age Discrimination in Employment Act of 1967 - http://www.eeoc.gov/laws/statutes/adea.cfm
·         Americans with Disabilities Act of 1990 - http://www.eeoc.gov/laws/statutes/ada.cfm
·         Civil Rights Act of 1991 - http://www.eeoc.gov/laws/statutes/cra-1991.cfm

Other Relevant Links:
Cornell University Law, Bona Fide Occupational Qualification:  http://www.law.cornell.edu/wex/bona_fide_occupational_qualification_bfoq
Cornell University Law, Disparate Impact
http://www.law.cornell.edu/wex/disparate_impact

Disclaimer

Please note, this information is based on my understanding and is only to be used for informational and educational purposes.  Do not take what I am writing as advice.  Seek legal counsel before making business or personal decisions. 




View Trevor Stasik's profile on LinkedIn
Post a Comment