Interviewing Applicants: How to Avoid the Pitfalls By Abbey Moland, Attorney, McGrath North Employee interviews can provide a valuable means for employers to learn about a prospective employee, but the process can also be fraught with legal minefields. For example, consider a lawsuit that was filed in federal court against Wal-Mart Stores. In that case, the interviewer asked the applicant “What current or past medical problems might limit your ability to do the job?” Although not apparent to the interviewer at that time, the applicant’s right arm below his elbow had been amputated and he had been fitted with a cosmetic prosthetic device. The applicant was not offered the job and he filed suit under the Americans with Disabilities Act. The jury awarded the Plaintiff $157,500 because the Wal-Mart interviewer asked an illegal question. This award included $100,000 in punitive damages for the unlawful inquiry, $50,000 in punitive damages for discriminatory failure to hire, and $7,500 in compensatory damages. Most employers already know that questions concerning an interviewee’s race, color, creed, religion, national origin, ancestry, sex, union membership, sexual orientation, marital status, disability or age are unlawful and off limits during the interview process. The exception to this rule is where the attribute is central to the job. For example, you
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may ask a candidate about their religion if you are a religious organization and the job requires the teaching of the principles of your particular religion. While avoiding unlawful subjects seems easy enough, it’s not always obvious what questions might be construed as inappropriate or elicit information relating to an applicant’s protected status that may subject an employer to liability. For example, the following questions or similar questions (or observations), while seemingly benign, are improper and tend to elicit information that the interviewer is not entitled to: j
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What year did you graduate from high school? (This is an improper request for age-related information. If necessary, you may confirm that the individual is over 18, but the age-related inquiries must end there.); Are you a U.S. citizen? (Questions relating to citizenship are prohibited unless the position specifically requires one to be a U.S. citizen and the job posting states as such.); Do you have children? Can you get a babysitter on short notice for overtime or travel? (Stay away from questions targeting family or marital status-related information and may be construed as gender discrimination.);
SOUTH DAKOTA MUNICIPALITIES
