In the past, when a position became available, a company ran an ad, resumes arrived, interviews occurred and a candidate was hired. In today’s litigious society, the process isn’t as simple as it once was.
Now, asking seemingly innocent questions like, “Are you married?” or “Will you need days off for religious holiday?” can get HR professionals in a load of legal trouble. As chair of Stark & Knoll’s Litigation and Employment Law Department, John Susany has tips for human resource professionals on the interview process.
* Review the questions. Susany says the federal Equal Employment Opportunity Commission (EEOC) suggests two questions human resource professionals should ask themselves when analyzing their company’s application or interview questions: “Will the answers to this question, if used in making a selection, have a disparate effect in screening out members of a protected class?” and “Is the information really needed to judge an applicant’s competence or qualification for the job in question?”
* Refer to the company’s law department. Legal professionals can create a uniform interview sheet to keep the interviewer on task and within the realm of acceptable interview questions.
“The safety in having a standard form is that a woman can’t come in and say, ‘They were asking me whether I can work late at night, and they don’t ask men that,'” Susany says. “There’s this sort of subterranean hint that because a woman traditionally is expected to care for hearth and home that the company has questions about her working late but not him.”
* Standardize the process. Susany says if an HR person sits in on every interview, he or she can make sure inappropriate interview questions aren’t asked or “that someone doesn’t go off on a lark, asking an African-American individual some questions that you wouldn’t ask a white person or asking a woman questions you haven’t traditionally asked of a man,” he says.
“Educate those people who conduct interviews about how to do it the right way,” he says. “These people speak for the company. Somebody can sue you for discrimination because they got fired (but) they can also sue you for discrimination because they weren’t hired.”
* Make sure your employment application complies with the law. Susany says many employers mistakenly create their own applications, buy generic forms or use outdated forms.
He says they should contain a paragraph verifying the information provided is true, and that if a false statement has been made, it is grounds for immediate discharge whenever it’s discovered.
He also suggests applications have an at-will disclaimer.
“It means (the employee) could quit at any time, and the company could fire (the employee) at any time –with or without cause,” Susany says. “What companies are not allowed to do is fire you for discriminatory cause.”
“The big issue on interview questions is if somebody doesn’t get hired, and you have asked him or her inappropriate questions, they could sue you or they could go to the EEOC or Ohio Civil Rights Commission and bring an administrative charge against you,” Susany says. “Those two agencies will investigate you to see what your interview process was like, what questions you asked, and they may call other applicants to see if you asked them similar questions. They will inquire, and you will have to justify your hiring.”
HOW TO REACH: Stark & Knoll, (330) 376-3300 or www.stark-knoll.com
Common sense
Federal and state laws prohibit discriminating against people who are in a statutorily protected class.
John Susany, chair of the Litigation and Employment Law Department at Akron-based Stark & Knoll, says human resource professionals need to understand what they can and cannot ask potential hires during the interview process.
“You only ask those things that are germane to your company,” he says. “You have to craft your questions in your interviewing process with the expectation that somebody’s going to make you justify why you sought the information you did.”
Ohio law protects these classifications:
* Race
* Color
* Religion
* Sex (male, female, pregnancy, sexual harassment, sexual stereotyping, etc.)
* National origin
* Disability — having a physical or mental impairment that substantially limits your ability to care for yourself, perform manual tasks, walk, see, hear, speak, breathe, learn or other major life activity; or having a record of a physical or mental impairment, or being regarded as having a physical or mental impairment
* Age (exact date of birth, must be at least 40 years old, etc.)
* Ancestry
SOURCE: Ohio Civil Rights Commission, (888) 278-7101 or crc.ohio.gov/cf_intro.htm
