Questions can get you in trouble. With competitive pressures and a natural desire to hire only the most productive employees, you probably screen job applicants -- perhaps for drug use, criminal records, or AIDS. But a surprising number of laws limit what you can ask and, as with other violations of antidiscrimination laws, violations can mean big legal bills and a major drain on time.
The best and simplest advice for any employer -- and the fairest for potential hires -- is to ask applicants only for information that is directly related to their ability to perform the job they seek. In addition, it's a good idea to review the specific questions you can and cannot ask under federal and certain state laws. Otherwise, you could in all innocence step over the line and into a lawsuit.
The federal Vocational Rehabilitation Act is designed to make sure that any contractor or subcontractor employed on a federal contract worth $2,500 or more, and any other employer who received federal funds -- through a grant, for instance -- doesn't discriminate against the handicapped. While this law doesn't apply to everyone, many states have used it as a model for their own laws, which apply to private employers generally. A word of caution: state discrimination laws tend to be more stringent, and when two laws apply, you usually must follow the more stringent of the two.
The first surprise for many employers is just how broadly the law defines a handicap. Under federal law, for example, people are handicapped if they have a mental or physical condition that substantially affects their ability to perform one or more major "life activities"; if they have a record of such a problem; or if the employer thinks they have such a problem. So, for instance, if you think an applicant has a bad back that might make it difficult for her to perform her job at some time, and you refuse to hire her, you could be found to have discriminated against a handicapped person.
Courts have ruled that obesity, suicidal tendencies, a borderline personality, post-traumatic stress syndrome, diabetes, and great sensitivity to tobacco smoke are all handicaps protected by federal or state law. Under federal law, alcoholics and drug addicts are also considered to be handicapped and protected by antidiscrimination laws unless their condition currently prevents them from performing a job adequately. States vary considerably on this point, so check for rules that may apply in your own state.
Federal law has no blanket prohibition on asking job applicants whether they have a particular handicap, but courts have ruled that such questions may be illegal. For instance, the Syracuse, N.Y., school district asked an applicant for a teaching position whether he'd ever had a nervous breakdown, and he acknowledged he had. The school district found that he was qualified to teach, but didn't offer him a job. The applicant sued under the Vocational Rehabilitation Act, claiming handicap discrimination, and the court agreed. Any question about a handicap has to be specifically related to whether an applicant can perform the job.
Some state laws are quite specific about what employers may and may not ask. In New York State, for instance, you may not ask whether applicants have a disability or whether they've ever been treated for specific diseases. Instead, you may ask only whether they have any physical, mental, or medical impairments that would prevent them from doing the job they've applied for, or if there are certain jobs they shouldn't be considered for because of mental or physical impairments. Putting the question this way may seem backward since the applicant probably knows a lot less about the real requirements of the job than you do, but that's the law.
At least 30 states have decided that AIDS is a physical handicap entitled to protection under antidiscrimination laws, just as are other communicable diseases. So asking applicants whether they carry the AIDS antibodies and screening them out of your work force could be illegal in many jurisdictions.
Federal law doesn't prohibit testing all job applicants for drug use, nor does it prohibit private employers from refusing to hire an applicant because of current drug use. This area of the law is changing rapidly, however, and so far as private employers are concerned, state law plays the primary role.
As of mid-February at least eight states had passed laws limiting the situations in which private employers may test employees -- or in some cases job applicants -- for drug use: Connecticut, Indiana, Iowa, Minnesota, Montana, Oregon, Utah, and Vermont. Another 16 states have introduced bills that may be enacted this year. Hawaii's proposed law, for instance, would prohibit applicant testing. Illinois would allow it only if there was reason to suspect that an applicant uses drugs. Other states propose to regulate the kind of tests employers may use and how they may be conducted. Still others will limit the ways employers can use information they gain from a drug test. To ensure that your applicant-screening procedures remain legal, here too you must check state and local laws, with special focus on any recent changes.
Using polygraphs to test job applicants is also regulated by many states and may soon be regulated by federal law. Twenty-one states and the District of Columbia already limit how and when private employers may use polygraph tests. In March, the U.S. Senate joined the House of Representatives in passing a bill that would limit polygraph use. If enacted, the law would likely prohibit employers in most industries from using polygraphs as part of preemployment tests.
The general rule about arrest records, under Title VII of the 1964 Civil Rights Act, is that unless you're using the information because you want to recruit such persons, you can't ask. The courts have found that such questions discriminate against minorities, and there's no evidence that past arrests tell you anything about how someone is likely to perform on the job.
You can probably ask about pending indictments, since the answer could be relevant to job performance. For instance, the crime with which an applicant is charged may be particularly relevant to the job he or she has applied for, so it probably makes sense to postpone a hiring decision until you know whether the prospect will be cleared of the charge. In addition, a person subject to an indictment may need substantial time off from work to pursue his or her defense. This is likely to be objectionable in any new hire, regardless of the reason.
In some states you are permitted to ask job applicants whether they have been convicted of a crime, but you can't have a blanket policy of refusing to hire any person who's ever been convicted. You may, however, take into account the nature of the crime. A federal court, for example, agreed with an employer who refused to hire an applicant convicted of stealing a government check from the mail -- the applicant was looking for a job in the company's mail room.
Courts recommend that you consider these questions when you evaluate an applicant convicted of a crime:
* How serious was the crime?
* How long ago was the conviction?
* What kind of job does the applicant seek?
* What's the evidence of rehabilitation?
* Were there any mitigating circumstances?
In situations in which job applicants and even former employees have been convicted of crimes involving dishonesty or violence, courts are likely to uphold an employer's decision against hiring, but they'll still consider the nature of the job and all the circumstances surrounding the conviction.
Credit and investigative reports
If you use credit bureaus of similar agencies to verify the information, applicants provide, there are important points to keep in mind so you don't unwittingly buy yourself a lawsuit instead of just accurate information. The federal Fair Credit Reporting Act governs the use of these agencies, and your own state may have laws that are more stringent.
Sometimes applications are verified and reports prepared by reviewing data -- credit reports, criminal records, and so on. Investigative consumer reports, on the other hand, are prepared by interviewing people associated with the job applicant. Under federal law, you must tell the applicant within three days after you order an investigative report. Some state laws prohibit employers from using investigative consumer reports unless the job applicant first gives authorization.
If you are considering someone for a job with a salary of less than $20,000 per year, the credit bureau cannot report on criminal activity -- arrest, indictment, convictions, or parole -- that is more than seven years old. Some states have higher salary limits and broader limitations on the kind of dated information that must be excluded from such a report.
If you deny someone a job because of information in a report supplied by a consumer credit agency, you have to tell the job applicant the name and address of the agency that supplied the report. But you needn't go into detail with the applicant about the report or your rationale. To avoid potential liability, you should disclose your use of reports when you tell applicants that you won't be hiring them.
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