Having suffered some unfortunate encounters with the Kentucky Department of Labor on wage and overtime issues recently, our hypothetical friend Elmer Employer is now determined to turn over a new leaf. He is ready to hire a new assistant and preparing for an upcoming job interview. Elmer is hoping, above all, to find an employee who is financially responsible. He also wants an employee who will not miss a lot of work, and who does not smoke.
Angela Applicant shows up at the appointed time for her job interview. Elmer asks her about her education. When she tells him she attended Jones High School, he tells her that he also went to Jones High, and asks her when she graduated. Angela reveals that she graduated in 1978. Elmer then tells Angela about the job, explaining that it sometimes requires transporting heavy boxes up and down stairs. Noticing that Angela wears a brace on her arm, he asks: "Do you have a problem with your arm?" Angela tells Elmer that there is no problem, and that she will be able to carry the boxes.
Elmer explains that regular attendance is essential to this job, and asks Angela if she has school-aged children. When Angela tells him she is a single mother, Elmer sinks in his chair, saying "I've had a lot of experience with single mothers. They lose a lot of time from work because of their kids. I hope that won't be a problem here." Angela assures him that she has excellent child care, and Elmer breathes a sigh of relief. Moving onto his next point, he tells Angela that he has a policy of hiring only non-smokers. Angela tells him that she is in the process of quitting smoking. Satisfied that Angela would be a good candidate, Elmer tells her the only thing he needs now is to have a credit check done to make sure she is financially responsible. Angela says that would be fine.
How do you think Elmer did in this interview? If you think he still has a lot to learn, you're right. He made some unwise comments and asked questions that should have been avoided.
Elmer's first mistake was asking Angela the year she graduated from high school. Although he may have just been trying to make small talk, the fact is that high school graduation dates usually reveal age. In this case, Angela's graduation date of 1978 suggests that she is probably about 49 or 50 years old, well within the over-40 protected class. She may well believe that Elmer would not have asked her this question unless he believed her age was important. Such a comment could become evidence for an age discrimination claim.
Elmer's next mistake was in asking Angela if "she had a problem with her arm." Under the federal Americans with Disabilities Act and Kentucky's similar law prohibiting discrimination on the basis of disability, covered employers may not ask, at the pre-offer of employment stage, questions likely to elicit information about a disability. Elmer could have and should have simply asked if there was any reason Angela could not transport heavy boxes or perform any other aspect of the job, with or without reasonable accommodation.
If Elmer's asking whether Angela had children made alarm bells go off in your head, there's good reason. This question, followed by his comment about his experience with single mothers, was very unwise. If Elmer does not hire Angela, or if he hires her and later discharges her, she might attempt to pursue a gender discrimination claim. If Elmer wanted to explore attendance issues with Angela, he should do this in a way that is gender-neutral. For example, he could explain the company attendance policy and then ask Angela if there was any reason she could not comply with the policy.
As to Elmer's questioning Angela about smoking, Kentucky law prohibits discrimination against applicants and employees on the basis of one's status as a smoker or non-smoker. This is another issue to avoid altogether in a job interview.
Finally, Elmer should not consider conducting a credit check on Angela without seeking advice from an attorney. Depending on how the credit check is done, and what disclosures are given, credit checks of applicants or employees may violate the federal Fair Credit Reporting Act.
It looks as though Elmer needs a bit of help with his interviewing skills! If he hires Angela, she will arguably have suffered no adverse action and have no damages at this point, so will probably forego filing an administrative claim or lawsuit for the time being. But if Elmer terminates Angela down the road, or takes some other adverse action against her, one or more of these interviewing faux pas may come back to haunt him.
Wendy Becker is a member in the Lexington office of Greenebaum Doll & McDonald PLLC. Do you have a question about employment law issues? E-mail Wendy Becker at wlb@gdm.com and your question may be addressed (anonymously, of course) in a future issue.
This article is provided as general information rather than legal advice. Questions about individual situations should be directed to legal counsel.