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Saturday, November 3, 2012

Avoiding hiring entanglements

“Binders full of women.”  Governor Mitt Romney’s gaffe during the second 2012 presidential debate has become an internet sensation.  While attempting to send the message that he was supportive of women in the workplace, Governor Romney’s choice of words may have sent the opposite message.  President Obama has also made gaffes.  When responding to a question about his bowling prowess, President Obama stated, “No, no.  I have been practicing . . . I bowled a 129.  It’s like – it was like Special Olympics, or something.”   President Obama’s attempt at self-deprecating humor came off as insensitive to families with special needs children.    

Just as candidates can run into problems saying too much on the campaign trail, employers can say too much during job interviews.  See if you can guess which of the following questions are okay to ask and which ones are not (source material taken from Employment Law Guide, Business and Legal Reports, Inc.).

  • You have an interesting name where does your family come from originally? – Not okay to ask.  Employers should not ask questions that could indicate the applicant’s lineage, ancestry, or national origin.
  • Are you authorized to work in this country? – Okay to ask.
  • Who should I contact in case of an emergency? –  Not okay to ask before hired.  This question could elicit information regarding marital status, domestic partnership status, national origin, or other protected information.
  • How old are you? – Not okay to ask.  May give the impression that applicants of a certain age are preferable leading to a claim of age discrimination.  It is permissible to ask whether an applicant has reached the legal working age in order to comply with child labor laws.
  • What was your last job? – Okay to ask.
  • Have you ever been arrested? – Not okay to ask.  An arrest without a conviction does not evidence any wrongdoing.  Blanket policies that exclude any applicant with a history of arrests could violate the law because they tend to exclude members of certain racial or ethnic groups.
  • Have you ever been convicted of a crime? – Generally okay to ask.  You could still run into problems if there were a blanket prohibition.  However, some jobs such as child care jobs require inquiry into a criminal background.  
  • Can you work on Sundays? – Not okay to ask.  The law prohibits discrimination on the basis of religion.  Once the applicant is offered a job it is okay to ask if the applicant will require an accommodation for religious practices.
  • Are you gay? – Okay to ask in Idaho.  Federal law does not expressly prohibit discrimination on the basis of sexual orientation.  It is left to the states to legislate.  In Idaho, a bill has been proposed that would ban discrimination based on “sexual orientation”.  It has been proposed each year for the last six years and is yet to be given a hearing.

No matter how well you did on the quiz, it is still advisable to consult an attorney regarding what questions you can ask during a hiring interview.  An employer can ask a question about a prohibited category only if it is reasonably necessary to the operation of the employer’s business and there is no less intrusive way to ensure that the applicant will be able to perform the essential functions of the job.  Making these determinations can be difficult, and an attorney can help you come up with the right questions to ask.

If you ever find yourself in a job interview in the middle of the awkward silence that follows after you asked a poorly thought out question, take solace in the fact that at least your gaffe will not be broadcast to millions and can probably be remedied by pulling a reverse Donald Trump and saying, “you’re hired!”

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  The opinions contained are his own and nothing written should be construed as legal advice.  Jeff's practice involves litigation, business disputes, and estate disputes.  He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com or follow him on Twitter @jeffbrunson.

Staff at 3:15 PM
Employment Law
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