On December 17, 2012, the EEOC approved its strategic enforcement plan for 2013-2016. Listed first among its national priorities is eliminating barriers in recruitment and hiring. Specifically, the EEOC stated that it will “target class-based intentional recruitment and hiring discrimination and facially neutral recruitment and hiring practices that impact particular groups.”[1] The focus here is on exclusionary policies, steering individuals into certain jobs based on their membership in particular protected groups and pre-employment screening tools.
While the EEOC does not claim to list its priorities by importance, there may be some significance to the fact that it listed recruitment and hiring practices first and employers would do well to revisit their hiring practices to make sure they are not “asking” for the EEOC’s attention by perpetuating habits, policies or procedures that conflict with the Commission’s new strategic enforcement priorities.
One place to start is the job interview. By now, virtually all employers know to avoid asking applicants questions that touch on protected categories such as race, national origin, sex, disability, religion and age. However, knowing that and actually accomplishing it are two different things. Certain questions, and more specifically the answers given, can put unwanted information in the employer’s hands.
Once that information is out there, it is hard to later claim that it did not factor into the employer’s hiring decisions. Consider the following:
A peer employee takes a prospective employee out to lunch during the interview process. During the lunch, he tells the applicant that he likes to cook and inquires if the applicant does as well. She says yes. He then asks,
Interviewer: “What kind of things do you like to cook?”
Applicant: “Dishes from my home country of ____.”
Regardless of what the answer is, it may be problematic for the employer. Seemingly innocuous questions about non-job related activities, like cooking, carry with them the risk that if the applicant in the above scenario does not get hired, she will claim it was because of her national origin. Likewise, questions about how many children an applicant has and what the applicant’s child care arrangements are, when asked of a female applicant, can lead to allegations that those same questions would have not have been asked of a male applicant.
In addition, focusing too much on an employee’s background may also lead to a hot-button issue that the EEOC has been targeting of late – arrests and criminal convictions. The EEOC has taken the position that blanket rules against hiring individuals with arrest and conviction records can have an adverse impact on some protected classes. The EEOC issued guidelines for considering arrest and conviction records in the hiring process. These guidelines garnered a lot of attention last year and were the subject of two Snell & Wilmer Workplace Word articles: Criminal Background Checks – Title VII and the Fair Credit Reporting Act and Individualized Assessments for Criminal Background Checks. While this area of the law will be in flux for the foreseeable future, as both the EEOC and courts further flesh out the contours of the EEOC’s position, employers would do well to remember that any questions related to the applicant’s background and, in particular, arrests and convictions, should be individualized to each applicant and related to the duties and requirements of the position for which they are hiring.
Employers should also remember to be cautious when asking questions that may elicit information regarding an applicant’s disability. Most employers know that they cannot directly ask for information on the physical or mental conditions that an applicant has or is being treated for or whether the applicant has any condition or disability that she believes may affect her job performance before being given a job offer. But, employers can ask whether an applicant can perform the required job duties, with or without an accommodation.[2] If the applicant says she can perform a task with an accommodation, then the employer can ask what that accommodation is. This could turn into a slippery slope for the untrained interviewer who may want to empathize with an applicant who identifies certain accommodations because, for example, the inteviewer’s mother requires the same type of accommodation due to her disability. If the interviewer shares that bit of personal information with the applicant, the conversation can quickly delve into the applicant’s diagnosis or disability.
Questions about an applicant’s social media account information are also off-limits now in several states, such as California, that have passed legislation prohibiting employers from asking for an applicant’s social media account and password information. The California law was enacted in 2012 along with similar legislation in three other states – Illinois, Maryland and Michigan.[3] Even where requesting that information is not a violation of state law, employers should be wary of requesting and using it. Accessing an applicant’s social media accounts can provide the employer with information about the applicant’s membership in a protected class.
So, what’s the bottom line? Keep interview questions job-related. Avoid delving too far into an applicant’s past if it is not job-related and train employees – both management-level and any peer employees who may be participating in the hiring process – on hiring dos and don’ts.
[1] U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2013-2016. [back]
[2] ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations. [back]
[3] National Conference of State Legislatures, Employer Access to Social Media Usernames and Passwords. [back]
