January 1, 2008
By: Brent T. Johnson
This article provides a brief introduction to legal issues involved in interviewing job applicants for available positions. It focuses primarily on questions that should not be asked by an employer during an interview, under federal and Colorado law.
Federal and Colorado statutes prohibit employment discrimination based on race, color, religion, sex, national origin, age, and physical or mental disability. A Denver ordinance adds marital status and sexual orientation to the list of protected classes. Employers should take care not to run afoul of these laws when interviewing job applicants. During interviewing, no questions should be asked which directly seek information about the applicant's inclusion in any of the protected classes listed above. Questions which indirectly might elicit such information should also be avoided. For example, questions about where an applicant's parents come from may seek information about national origin, questions about the applicant's date of graduation may seek information about age, and questions about which organizations an applicant belongs to may seek information about religion, race, or national origin.
There are also some specific questions which should not be asked that may not be intuitive. For example, an employer may ask whether an applicant has been convicted of a crime, but not whether the applicant has ever been arrested. (Because some minority groups have higher arrest rates, either criteria could screen out a higher percentage of minority applicants and thereby have an "adverse impact" on minority groups. Business necessity may justify that adverse impact with respect to convictions, but the EEOC maintains that mere arrests do not necessarily indicate wrongdoing and therefore there cannot be a business necessity for obtaining this information.) You also should not ask whether an applicant has ever filed bankruptcy, whether the applicant is a U.S. citizen (you may ask whether the applicant is legally eligible for employment in the U.S.), or whether the applicant has ever filed any worker's comp claims. Applicants should not be asked questions about day care arrangements for children or which spouse stays home with a sick child. Such questions are discriminatory if asked only of female applicants, and even if the questions were in fact asked of all applicants, some might assume they are asked only of females, or otherwise be offended by the questions. In general, an interviewer should avoid asking any questions only of one gender of applicants, such as, "Do you have any future plans to raise a family and perhaps withdraw from full-time employment?"
The statutory prohibitions against discrimination on the basis of physical or mental disability perhaps pose the greatest minefield for interviewers. A person has a "disability" if:
2. the person has a history of such an impairment; or
3. the person is (erroneously) regarded as having such an impairment.
- 1. the person has a physical or mental impairment that substantially limits one or more major life activities;
An employer may not discriminate against a qualified person with a disability who is able to perform the "essential functions" of the position, either with or without "reasonable accommodation." Unlike other anti-discrimination statutes, where asking a "wrong question" only gives rise to an inference that the employer intends to use the answer in a discriminatory manner, the Americans with Disabilities Act provides that it is per se unlawful to make inquiries of an applicant as to whether the applicant has a disability or as to the nature or severity of such a disability. It is acceptable to ask about the applicant's ability to perform job-related functions. Here are some examples of questions that should not be asked:
- Do you have asthma (or AIDS)?
How many days were you sick last year? (Acceptable to describe employer's attendance policy and ask whether the applicant believes he/she can meet those requirements.)
How much alcohol do you drink each week? Have you ever been treated for alcoholism? (Alcoholism, past or present, and past drug addiction can be a protected disability, unlike current use of unlawful drugs, which is not protected.) It is acceptable to ask whether the applicant drinks alcohol.
Have you ever been treated for mental health problems?
Asking an obviously disabled applicant questions about how the disability happened, what the prognosis is, or how the impairment affects the applicant's daily life activities.
Asking follow up questions concerning a disability that is voluntarily disclosed by an applicant. [But see update, below]
Can you stand? Can you walk? (These questions are probably too broad to be directed to ability to perform a job function, and instead are regarded as inquiries into the existence of a disability.)
Would you need accommodation to perform this job (or this specific job function)? (Acceptable to ask whether the applicant can perform a job function with or without reasonable accommodation, or to ask the applicant to describe how he/she would perform the job function with or without reasonable accommodation.) [But see update, below]
What medications are you currently taking?
- Do you have a disability that would interfere with your ability to perform the job? (Acceptable to ask whether an applicant can perform a certain job function, such as using a computer, with or without accommodation.)
The EEOC's guidelines on preemployment inquiries cover the above specific points and state the obvious: "there are sometimes subtle distinctions between a permissible and a prohibited pre-offer inquiry." Employers should exercise great caution in asking questions that may implicate the Americans with Disabilities Act.
Update: In response to comments from employers and advocates for the disabled to the effect that the guidelines did not allow employers to explore in appropriate cases whether they could accommodate an applicant, the EEOC in late 1995 revised its guidelines to provide that there are three situations in which an employer may ask questions about reasonable accommodations that an applicant with a disability would need on the job:
- 1. If an applicant has an obvious disability that would require accommodations;
2. If the applicant voluntarily discloses a hidden disability; or
3. If the applicant asks for some type of reasonable accommodation.
This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.
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