After two months, 30 resumes and five interviews, you finally filled your vacancy. Congratulations—but you may have to temper your celebrations. Suppose an unsuccessful candidate starts second-guessing your decision? If he or she suspects bias, you may find yourself in court.
Now, more than ever, practices must be mindful of the antidiscrimination laws that protect applicants from inappropriate questions and treatment. These laws relate to issues of race, ethnicity, nationality, religion, gender, age, disability, pregnancy, marital status, veteran status and sexual orientation.
Reduce the risk of a lawsuit by forgoing questions that can be misconstrued as serving an illegal discriminatory purpose. “The interview process is intended to determine whether the applicant has the qualifications to perform the duties of the job,” said Dana L. Holtz, JD, a partner at Wade, Goldstein, Landau & Abruzzo of Berwyn, Pa. “Therefore, the interviewer shouldn’t ask questions that are unrelated to the position’s requirements and the candidate’s related skills and abilities.”
“Be proactive in your entire employment process,” added Carol A. Poindexter, JD, a partner in the National Health Law Practice Group of Shook, Hardy & Bacon LLP in Kansas City, Mo. “Find out what you can and can’t ask, and train whoever is doing the interviewing. By doing that, you can stop many problems from happening in the first place.”
Four Steps to Take
Use this four-step plan to keep your interview legal.
1. Before the interview—define the job and prepare questions. “An effective technique is to develop a standard set of interview questions that draw directly from the description of the position to be filled,” said Ms. Holtz.
Before you compose interview questions, first define the job with its essential functions and duties. Some common job requirements, and a few that you may not initially think of, include: a) the expertise or skill necessary to perform the job, b) the work experience of past or present employees in the position, c) the number of employees available to perform the job or among whom the work will be distributed, d) the necessary time to perform a function and consequences of not performing the function within the allotted time and e) whether the position in question exists solely to perform a specific job.
2. Keep questions objective, not personal. “If the nature of what you’re asking is personal rather than job related, you’re opening yourself up to potential liability,” said Marty Brounstein, principal of The Practical Solution Group, a training and consulting firm in San Mateo, Calif.
“It is not that the questions themselves are illegal but rather that they may elicit information which cannot be used as the basis for employment decisions,” said Ms. Holtz. As an example, she said that it’s not illegal to ask a candidate his or her age. But a rejected candidate may later think that he or she was eliminated because of age. “Since such information cannot be used for making employment decisions, it is best if the interviewer avoids such questions,” said Ms. Holtz. “Common hot-button questions to avoid include: Are you married? Do you have children? What are your child care plans? Do you plan on getting pregnant? What is your race? and Where were you born?”
In another example, it is against the law to ask applicants whether they are disabled or to inquire about the nature or severity of their disabilities. You should never phrase questions in terms of a disability, but you may ask questions about an applicant’s ability to perform a job-related function with reasonable accommodations. As an example, Ms. Poindexter described a job requirement that asks an employee to lift and move a certain amount of weight—say, to help patients move on to medical examination apparatus.
3. Stick to the script: Ask each interviewee the same questions. “This practice leads to a much more objective and balanced assessment of the competing candidates, and provides the documentation to demonstrate the fairness of the ultimate decision,” said Ms. Holtz.
4. Make sure interview notes work for you, not against you. Taking interview notes can document the hiring process and provide evidence that you did your best to comply with antidiscrimination laws. By writing the questions and the responses, employers will have evidence that may be reviewed in the event of a complaint, said Mr. Brounstein. “Anytime there’s evidence vs. opinion, evidence will win,” he said. “Capture the main points of what they are saying, rather than your opinions of them.” On the other hand, “notes are a two-edged sword,” said Ms. Poindexter. “Don’t put anything in writing that you don’t want 12 people in a jury to see at some later point.”
The value of goodwill. “Everybody who comes in should be treated with respect and given a fair show, and should walk away with a positive impression of the workplace and organization, regardless of whether they’re hired or not,” said Mr. Brounstein.
The Medical Exam
Although you can’t require an applicant to take a medical exam before you make a job offer, you can make an offer contingent on the successful completion of a medical exam. But you can do this only when the medical examination is required of all employees in the job category. If an individual is rejected because an examination reveals a disability, you will have to show that the exclusion is related to the functions of the job and there are no reasonable accommodations that could help the individual perform the job.
When You Receive a Complaint
How should you respond to a complaint and potential lawsuit? “The very first thing to do is contact an attorney who is familiar with employment law and the medical field,” said Ms. Poindexter. “If you think there’s going to be a problem, let your attorney know. He or she will help you to defend yourself by building a record of what happened, when it happened and who was involved.”
And the practice also should promptly conduct an investigation, added Ms. Holtz. “The practice’s attorney can help decide whether the administrator, manager or one of the physician-owners should conduct the investigation, or whether the practice’s attorney or an outside investigator should conduct
Where the Law Came From: Where It Is Headed
Title VII of the Civil Rights Act of 1964 prohibits private employers with 15 or more employees from discriminating against applicants based on their race, color, religion, sex or national origin. It requires that pregnancy, childbirth and related medical conditions be treated as other temporary illnesses or conditions, unless doing so imposes undue hardship.
The Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against applicants based on disability. Under the ADA, applicants must have a record of, or be regarded as having, an impairment that limits their ability to speak, breathe, hear, see, perform tasks, walk, learn or work. Qualified applicants with disabilities must be able to satisfy the requirements of a job to perform essential job tasks with or without reasonable accommodation. Examples of reasonable accommodation include: reassigning vacant positions; acquiring or modifying equipment or devices; altering job requirements; making facilities accessible to persons with disabilities; modifying work schedules; providing qualified readers or interpreters, or adjusting or modifying training materials, policies or tests. An employer has to make a reasonable accommodation to a qualified individual with a disability unless it imposes an undue hardship on the employer in terms of finances or operational structure. An employer is not required to lower production standards to make accommodations.
The Age Discrimination in Employment Act (ADEA) prohibits employers with 20 or more employees from discriminating against applicants on the basis of age, protecting employees who are 40 years of age or older. It also prohibits age preferences and limitations in job notices or advertisements.
The scope of the laws has gradually expanded. “Although there have not been major developments, either statutorily or by case law, through case law there has been a development in the types of conduct that might form the basis for discrimination,” said Ms. Holtz. “For example, case law has made it clear that same-sex harassment is a form of sexual discrimination.” As a result, a man can sexually harass another man and a woman can sexually harass another woman, and the sexual orientation of the parties is irrelevant. “Also in the area of sex discrimination, there have been a growing number of cases based on gender stereotyping, which is a form of sex discrimination,” said Ms. Holtz. She also pointed to a broadening of traditional “protected classes.” Although not protected by federal law, some state and local laws now prohibit discrimination based on sexual orientation. “With an increasing number of statutes being passed, there is likely to be a growing number of claims of discrimination related to sexual orientation,” she said.
Web site of the U.S. Equal Employment Opportunity Commission: www.eeoc.gov.
The Ophthalmic Executive’s Resource Guide: Interviewing to Hire Smart (#012016) costs $25 for members ($40 nonmembers). Order a copy at www.aao.org/store or phone 888-393-3671.