- M. Lee Smith Publishers

<font size="1">Excerpted from Vermont Employment Law Letter and written by an attorney at the law firm of Dinse, Knapp & McAndrew, P.C.</font><br />

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The Second U.S. Circuit Court of Appeals recently determined that a job applicant presented enough disputed information for his age discrimination case to be submitted to a jury, rather than dismissed.<br />

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The applicant claimed that the individuals who interviewed him had an age bias against him and preferred the younger applicants. In reviewing the case, I was reminded of the importance of the interview process. This article will discuss the dos and don'ts for interviewing job applicants.<br />

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<strong>Dos</strong><br />

Provide training to the employees who will be conducting the interview. Employees who will be interviewing job candidates should be provided with guidance on how to conduct interviews. They should be informed about the appropriate subjects for inquiry and topics to avoid.<br />

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They also should be reminded of the danger of idle chitchat. While it's important to create a comfortable environment for the interview, seemingly innocuous comments can lead to liability further down the road.<br />

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Ask the same questions of all interviewees. Consistency is key. By asking the same questions of all applicants, an employer can avoid a claim that any one particular individual was singled out because of a protected characteristic.<br />

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Often, it's best to design a list of predetermined questions. With that approach, an interviewer will be better prepared and conduct a more thorough interview while avoiding stray comments or remarks that can expose the employer to liability.<br />

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Limit questions to job-related areas. The purpose of the interview is to identify the best candidate for a position. Therefore, interview questions should focus on the education, experience, and abilities of the applicant and her suitability for the position.<br />

It's often a good idea to review the pertinent job description and the essential functions of the position and determine the knowledge and skills needed to succeed in the position.<br />

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Maintain detailed, careful notes. Notes taken during the interview should be objective, detailed, factual, and concise. Avoid gratuitous comments unrelated to the applicant's experience and qualifications for the position. Always keep in mind that notes created during the interview process can and will be provided to the applicant if a lawsuit is filed later.<br />

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<strong>Don'ts</strong><br />

Avoid promises. An interviewer shouldn't make any promises. Simple comments about the hiring process or job security may later bind the employer.<br />

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Avoid questions or comments about an applicant's race or national origin. Don't ask about the birthplace of the applicant or his spouse or parents. Don't ask about the origin of his name. Don't ask about membership in any social clubs or organizations. Don't ask whether English is an applicant's first language.<br />

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If fluency in a particular language is a required job responsibility, however, you may inquire about an applicant's ability to speak, read, and write the language.<br />

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Avoid questions or comments about an applicant's disability. Don't ask about medical conditions, past hospitalizations, or past medical, psychiatric, or psychological treatment. Don't ask about prescription drugs or medications. Don't ask about the number of days an applicant was sick during his previous employment.<br />

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You may, however, legitimately inquire about his general history of absences. You may ask whether an applicant is able to perform the job, with or without reasonable accommodation, when he has an obvious disability or when all applicants are asked the same exact question.<br />

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Also, if an applicant's disability is obvious or he volunteers that he has a disability and you reasonably believe an accommodation will be needed, you may ask him if he needs a reasonable accommodation.<br />

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Avoid questions or comments about an applicant's history of workers' compensation injuries. Don't ask an applicant whether she was previously injured on the job. Don't ask an applicant whether she previously filed a workers' comp claim.<br />

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Avoid questions or comments about an applicant's gender, marital status, or sexual orientation. In addition, you should avoid questions or comments about pregnancy, family plans, number of children, and child-care arrangements.<br />

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Avoid questions or comments about an applicant's age. Don't request an applicant's date of birth. To prevent an inference of age discrimination, don't request age-related information, such as the date the applicant graduated or completed a degree.<br />

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Avoid questions or comments about an applicant's religion. Don't inquire about an applicant's religious views or membership in religious organizations. Don't inquire about religious holidays observed. You may ask an applicant whether she is able to work weekends or holidays, but only if the inquiry is job-related and consistent with business necessity.<br />

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Avoid questions or comments about an applicant's military status. Don't inquire into an applicant's current status in the military, his discharge from the military, or his military disciplinary record. Such questions are thought to have a disparate impact on minorities.<br />

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Avoid questions or comments about an applicant's arrests. The Equal Employment Opportunity Commission takes the position that such inquiries have a disparate impact on minorities.<br />

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If relevant to a particular position, an employer may investigate an applicant's criminal convictions. Information obtained from any such investigation, however, should be used as the basis of a job decision only if it relates to an applicant's fitness to perform the employment position.<br />

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Avoid questions or comments about an applicant's physical attributes. Unless objectively related to a particular employment position, you should avoid making inquiries into an applicant's height or weight because that may create an inference of discrimination against women or minorities.<br />

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Bottom line</strong><br />

During an interview, questions should be focused on the applicant's education, skills, and qualifications. Questions that aren't related to an applicant's abilities to perform the employment position should be avoided.<br />

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Proper training, comprehensive preparation, and objective documentation can help protect an employer by preventing claims of discrimination during the interview process.<br />

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Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from VERMONT EMPLOYMENT LAW LETTER. VERMONT EMPLOYMENT LAW LETTER does not attempt to offer solutions to specific problems, but rather to provide information about current developments in Vermont and federal employment law. Inquiries about specific problems should be addressed to the labor or employment law attorney of your choice. Vermont does not certify lawyers as specialists in labor and employment law or other areas of concentration.</font><br />