Last week, Paul Shaheen, Vice President of The Horton Group, issued Horton’s 1st “Legal-EASE” newsletter-Timely tips, courtesy of the Horton Group’s Law Practice Division. An article that I wrote is the inaugural piece. It’s below. If you’d like to subscribe to this newsletter, feel free to contact Paul. Also, his full contact information follows the article.

What’s Appropriate to Ask Job Candidates?

By: Charles A. Krugel

Although there are only a few explicitly illegal questions that an employer should never ask a job applicant, there are many more questions which lead to the inference that the employer intended to illegally exclude (discriminate against) a member of a protected class. One way to help avoid or minimize liability for discrimination is to ask all applicants all of the same questions.

Additionally, it’s crucial that you focus on questions related to the essential job functions. Or, put another way, are the questions you’re asking intended to solicit information connected to the applicant’s ability and willingness to perform the essential job functions, or are they more indicative of illegal bias? In almost all cases, it’s not an essential job function to be of a certain race, age, sex, sexual orientation, etc. Exceptions are extremely limited.

One popular selection technique is to ask candidates behavior oriented questions such as how the applicant handled prior workplace disruptions or disputes, or how they would handle job related issues or matters that are related to the position. These types of questions can be asked in a written form or verbally during an interview.

Below is a handy bullet-point summary of do’s and don’ts for avoiding legal problems during the selection process.

Job Candidate Application & Selection Summary

Focus on the essential functions of the job. Essential job functions usually defined via a valid job description.

For all candidates:

  • Ask the same questions,
  • Use the same background checking processes, use the same tests; and
  • Score/assess the same way; i.e., don’t adjust scoring/assessment system unless for a valid and/or legal purpose.

Don’t discriminate in the hiring process on the basis of any protected class (see below); unless:

  • mandated pursuant to a legally binding order or agreement, or
  • you are doing so based on a “bona fide occupational qualification.”

Can ask if candidate can perform the essential job functions with or without an accommodation (or a reasonable accommodation).

  • Type of accommodation is generally contingent upon why needed, cost and feasibility.

Don’t ask questions intended to elicit, or which unintentionally elicit, information regarding:

  • race
  • gender
  • religious beliefs
  • age
  • sexual orientation
  • disability
  • military status
  • socioeconomic status – where are you from, own home, rent home, how will pay for home, education, etc.
  • national origin.

Currently, it’s popular to ask behavioral questions of candidates. These questions might be useful as they’re generally nondiscriminatory, and they elicit performance and conduct related information. Examples of such questions include:

  • Describe a situation in which you and another coworker conflicted. What happened? How did you deal with the situation? How was the situation resolved?
  • Describe a situation where your employer asked you to do something which you believe may have been unethical or unprofitable for the business? How did you handle this? What was the outcome?

Background Checking – Compliance with federal laws like the Fair Credit Reporting Act, Consumer Credit Protection Act and state law like the Illinois Uniform Conviction Information Act is contingent upon:

  • disclosure of the background check;
  • disclosure of the reason for background check;
  • procurement of candidate or employee’s written release(s)–could be more than 1 release depending on the checks conducted.

Also:

  • subsequent to the selection process, if a candidate or employee is rejected as a result of the check, then provide employee with the relevant part of the report and summary of rights/ recourse options.

Employment Testing:

  • Make sure that the test is valid, reliable and used for purpose(s) intended.

Charles Krugel – a Chicago based private practice attorney who specializes in management side labor and employment law–is a vendor partner of Horton’s Law Practice Division. He can be reached at 312-804-3851, or by email at cak1@charlesakrugel.com

Paul V. Shaheen, RHU REBC
Vice President – The Horton Group, Law Practice Division
221North LaSalle, Suite 910
Chicago, Illinois 60601
v: 312-917-8623/f: 312-324-9223/ c: 708-715-6623
paul.shaheen@thehortongroup.com
www.thehortongroup.com