Companies spend substantial resources to obtain, train, and when necessary, to replace employees. The workforce should be seen as a valuable resource for a company. The importance of obtaining the right person for the right position in the company cannot be underestimated.
I. THE INTERVIEW PROCESS
Equally important, are policies and procedures that identify and correct personnel problems in a prompt, efficient manner. Although termination of the employer-employee relationship should be a last resort, it is sometimes required to maintain the overall stability of a business. The interview process is the first step to accomplish these important goals, but too often, the process is handled without preparation and without proper attention to detail. The following are important considerations:
A. Preparation for the interview process - obtaining the best candidates
1. Understand the job requirements: Understand the requirements of the position for which you are interviewing candidates, including qualifications such as the educational level, experience and special skills required. Distinguish between essential functions (required for existence of the job) and non-essential functions (those collateral to the position and not absolutely required for performance of the job). This task requires obtaining an accurate job description and preparing in advance areas of inquiry that will illicit responses that will help determine whether the candidate has the proper skills to perform the position for which he or she is being considered. The interviewer should have prepared questions, or at the very least, a bullet point list of items for discussion so that a comparison between various applicants being interviewed will be based on objective criteria rather than just a gut feeling.
2. Describe the job but focus on listening: Qualifications and skills required for the employment position, such as typing speed, foreign language proficiency, particular knowledge of software and equipment should be explained to the candidate. However, while describing the requirements of the job are important, your focus should be on listening to the candidate. Refrain from talking too much about yourself, and from articulating at length the type of personality the individual should possess. Instead, allow the candidate to respond freely concerning how he or she will be a good fit for the position.
3. Information on professional background: Of course, this involves obtaining the individual’s educational information and employment experience. However, it should also be used to develop an understanding of why the individual liked or disliked certain types of jobs, certain tasks, certain supervisors, etc. What does the candidate feel would be an ideal job for them? Is it compatible with the position for which they are being considered?
4. Communication skills: Use your time with the candidate to assess whether he or she has the requisite communication skills for the position with the company. Also, do they appear to be enthusiastic about the position? Can they articulate why?
5. Determine ability to handle complex problems: You may want to ask the candidate to describe a couple of examples of complex problems they have encountered in their previous employment, and how they handled those situations. In addition, you can present a hypothetical situation that relates to the job for which they are being considered and ask how they would attempt to resolve the problem presented.
6. Allow candidate to ask questions: Allow sufficient interview time so that the candidate may ask questions. This is important because it allows the candidate to evaluate what will be expected if he or she accepts an offer for employment with the company. Concurrently, it allows the interviewer to assess the candidate’s interest in the position, and may reveal other important information.
7. Make notes during and after interview process: It will be extremely helpful to make handwritten comments based on objective criteria for each candidate. Place the comments under or near the questions / bullet points used during the interview process. Notes are a handy tool when later comparing candidates, and also serve as a record to explain why certain employment decisions were made.
B. What can and cannot be asked during the interview
1. Title VII of the Civil Rights Act of 1964 (“Title VII”) (42 U.S.C. §2000e, et seq.): Title VII applies to employers with 15 or more employees during 20 calendar weeks of the current year or the preceding year in which alleged discriminatory conduct occurred. During the interview process, a questioner is faced with the task of avoiding questions that spark discriminatory complaints, while asking questions that will illicit important information necessary to determine whether the applicant will be able to perform the essential functions of the position. Section 2000e-2 of Title VII makes it unlawful to (1) refuse to hire or to discharge or discriminate against an individual with respect to terms, conditions or privileges of employment because of race, color, religion, sex or national origin; or (2) to segregate or classify employees or applicants so that their employee status is adversely affected based on those traits. Other federal statutes discussed below, also limit the inquiry permitted during an interview.
2. The Americans with Disability Act of 1990 (“ADA”) (42 U.S.C. §12101, et seq.): The ADA applies to employers with 15 or more employees during 20 calendar weeks of the current year or the preceding year in which alleged discriminatory conduct occurred. The ADA makes it unlawful to refuse to hire or to discriminate against a qualified individual with a disability, and requires covered employers to make reasonable accommodations for qualified disabled applicants and employees. “Qualified” is defined in the ADA as being able to perform the essential job functions with or without an accommodation. The term “disabled” includes not only persons with disabilities, but those with a record of having been disabled, or perceived as being disabled. 42 U.S.C. § 12102(2); Sutton v. United Airlines, Inc., 527 U.S. 471, 478, 119 S.Ct. 2139, 2144 (1999).
Accordingly, an interviewer must focus on the applicant’s ability to perform the functions essential to the job, rather than ask questions designed to illicit information concerning the individual’s current or prior injuries or ailments (mental or physical). Careful questioning will reveal a candidate’s ability to perform the job without being potentially discriminatory in nature.
3. Age Discrimination in Employment Act (“ADEA”) (26 U.S.C. §621 et seq.): The ADEA applies to employers with 20 or more employees for 20 or more calendar weeks in current or preceding year. Under the TCHRA, however, which contains an age discrimination provision, only 15 employees are required for age discrimination protection. See TCHRA § 21.101 et seq. The ADEA protects employees, retirees and applicants over 40 years of age by making it unlawful to discriminate “because of . . . age.” See 26 U.S.C. §631. Generally, the ADEA does not prevent favoring older workers over younger workers. See 29 C.F.R. Part 1625 (2007 Federal Regulation); General Dynamics v. Cline, 540 U.S. 581, 124 S.Ct.1236 (2004).
Under the ADEA (but not in Title VII cases) it is not discriminatory to base employment decisions on an “otherwise prohibited action where the differentiation is based on reasonable factors other than age.” See 26 U.S.C. § 624(f). The employer bears the burden of proving that the employment decision was based on reasonable factors other than age. See Smith v. City of Jackson, 544 U.S. 228, 125 S.Ct. 1536 (2005) (no age discrimination where officers with less than 5 years tenure received a disproportionately higher raise in an attempt to bring salaries in line with surrounding county police forces).
4. Caregiver Discrimination Issues: Recently, the EEOC has issued enforcement guidelines for the Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. While not intended to create a new protected category, the guidelines are designed to illustrate circumstances that may be considered discriminatory under Title VII, or a prohibition under the ADA against discrimination based on a worker's association with a disabled individual. See 29 C.F.R. § 1604.11 (Sexual Harassment Guidelines); 29 U.S.C. § 1630.8 (ADA section making it unlawful for an employer to "deny equal jobs or benefits to, or otherwise discrimination against," a worker based on his or her association with a disabled individual). See also, Abdel-Khalke v. Ernst & Young, LLP, No. 97 Civ. 4514 JGK, 1999 WL 190790 (S.D. N.Y. Apr. 7, 1999) (not reported in F.Supp.2d) (court found fact issues existed for jury concerning whether applicant refused employment because she would take time off to care for disabled child).
The Equal Employment Opportunity Commission (“EEOC”) and many states now recognize that there is discrimination against caregivers (mothers and those who must care for a disabled loved-one), which has the most dramatic impact on mothers. It should also be noted that sex discrimination against working mothers is prohibited, even if other women in the company without children are not subjected to discriminatory treatment.
C. Recent developments concerning national origin and foreign language
The EEOC, recognizing that the labor force is becoming increasing more ethnically diverse, has issued guidelines concerning foreign accent discrimination (a form of national origin discrimination prohibited by Title VII). In some instances, an employer may have a legitimate business reason for rejecting a candidate whose lack of linguistic skills will prevent the individual from performing the essential duties of the job in question. See http://www.eeoc.gov/policy/docs/national-origin.html.
The interviewer, however, is charged with the obligation of distinguishing between a discernable foreign accent and the inability of an individual to communicate sufficiently in English given the requirements of the position. For example, the individual applying for a job in sales, customer service or who will be required to teach, may need a proficiency in English, which would be a legitimate required skill for the job. In other circumstances, fluency in English is not an essential part of the job, and the employer should not require greater fluency than is needed.
In the case In re Rodriguez, 487 F.3d 1001, 1009-10 (6th Cir. 2007), the Sixth Circuit Court of Appeals concluded that a human resources manager's comments that Mr. Rodriguez's hispanic accent would impair his ability to rise through the company ranks was direct evidence of national origin discrimination. In this case, Mr. Rodriguez was denied a promotion to a manager position despite the fact that he spoke fluent, although accented, English. Thus, the human resources manager's consideration of a trait unrelated to whether the employee could perform the tasks associated with a manager's position could support a failure to promote claim.
1. English Only Rules: Some employers have instituted rules restricting workplace communication in languages other than English. Such rules can be justified, but only based on a legitimate business purpose. For example, a rule requiring employees to speak English during emergency situations or in certain work areas where safety is a concern, or to assist English speaking customers may be legitimate, while banning other than English conversation during breaks or when making personal telephone calls is likely discriminatory. See 29 C.F.R. § 1606.7 (English Only Rule Guidelines – EEOC); EEOC v. Premier Operator Services, Inc., 113 F. Supp.2d 1066, 1076-77 (N.D. Tex. 2000) (Hispanic employees who were forced to be on guard not to utter native language even during private moments, were subjected to national origin discrimination).
2. Citizenship Requirements: Discrimination based on lack of citizenship may violate Title VII's prohibition against national origin discrimination when the purpose of the requirement is a pretext for discrimination. In this context, Title VII provides protection for those individuals who have legal status and who are authorized to work in the United States. An employer may avoid liability if the individual is not authorized to work in the United States. Hoffman Plastic Compounds, Inc. v. National Labor Relations Bd., 535 U.S. 137, 122 S.Ct. 1275, 1283-84 (2002).
When interviewing candidates, employers should take care to make sure that the questioning process is both effective and legally compliant. Moreover, supervisors, managers and other individuals charged with interviewing and hiring candidates should be trained in company policies and procedures that incorporate these important considerations.
The information contained in this article is not designed to address specific situations, and does not include rules and regulations that apply to all states . If you have questions concerning this topic, you should consult with legal counsel of your choice to obtain advice on various fact specific matters.
Robin Foret practices in the areas of employment law, commercial litigation and specialty insurance defense claims. She handles a variety of employment matters such as theft of trade secrets, breach of employment agreements, non-competition agreements, wage and hour issues under the Fair Labor Standards Act (FLSA), discrimination and harassment issues under Title VII of the Civil Rights Act of 1964 (Title VII) and the Texas Commission on Human Rights Act (TCHRA), the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA) issues, and the Sarbanes-Oxley Act (SOX). Robin has handled a wide variety of employment law matters for employers, as well as for executive-level employees, before agencies, and state and federal courts.