When interviewing, "harmless" questions could get you sued

Avoid remarks involving "protected categories"

Whether you are interviewing emergency medicine physicians, mid-level providers, or technicians in your ED, certain questions or remarks can get you into legal trouble. What should you avoid saying during the hiring process?

Any comments about a person's race, national origin, religion, age, family, military or marital status, or disability are off limits, says John W. Robinson IV, a shareholder in the employee litigation department in the Tampa, FL, office of Fowler White Boggs Banker.

Avoid any attempts at humor involving these topics, which are "protected categories" under the law, advises Robinson. "In fact, the joke will be on the interviewer," he says.

One interviewer commented negatively about how "everyone from Miami is Cuban. Little did the interviewer know that this highly qualified female interviewee, with an Anglo married name, was the daughter of a prominent businessman from Cuba, and turned down the job offer," he says. "So, you never know."

You can—and probably should—ask questions about past job performance, licenses, skills, experience, abilities, education, and dependability, says Robinson. Questions may include: Why did the applicant leave his or her last job? Does the applicant have dependable transportation? Can the applicant work all shifts, overtime and on-call?

"These are all job fitness issues, not family or disability issues," says Robinson. "Rarely do you need to know why someone is unfit for the job. You just need to know whether the applicant is minimally fit for the job and, ideally, whether he or she is the best fit for the job."

By the same token, you do not need to take an applicant's word that the applicant can perform under pressure and reliably. "You usually have a probation period and reference checks to help figure out those issues," says Robinson.

There are far fewer claims of illegal failures to hire versus illegal discharges, adds Robinson. "One reason is the unsuccessful applicant rarely knows who got the job," he says. "If the applicant does know who got the job, and that may happen in the emergency department community in a town, be prepared to document that you hired the objectively best qualified candidate."

Gratuitous questions or statements about gender, race, religion, age, disabilities, or national origin can "really backfire" with an unsuccessful applicant, says Robinson. "Nobody blames herself when she does not get a job. She is looking for other reasons," says Robinson. "If the interviewer plants the seed of suspicion that the 'real' reason was a discriminatory reason, look out!"

Don't ask "creative" questions

Interviewees generally do not intend to focus on protected characteristics. "Often, they resort to seemingly harmless jokes and small talk to fill in dead space during the interview, or to try to establish rapport with the candidate," says Katrina Campbell, general counsel at Brightline Compliance, a Washington, DC, firm specializing in workplace issues. But inappropriate comments can lead to Equal Employment Opportunity Commission charges and litigation by rejected candidates, she warns.

When trying to create a rapport, be careful to avoid "creative" questions or remarks that could lead you down an inappropriate path, advises Campbell. For example, interviewers should not joke or comment about their own age or the age of the population by saying "There are a lot of gray hairs around here," or "It's like a college campus here."

Candidates may take these statements as signs that they will not fit in, or if they are not hired later, may conclude it had something to do with their age, says Campbell.

In addition, questions that seem to relate to protected categories can be risky. For example, questions about whether a person has children and how old they are may indicate to a candidate that the interviewer questions the candidate's ability to work certain hours.

Instead, ask direct questions about the candidate's ability to work the specified schedule, to travel if that is necessary, to working overtime, and other job requirements. For example, an interviewer can say: "Working in the emergency department requires that you work different shifts, including overnight shifts. Can you meet this job requirement?"

Family status can be a protected category in certain states and localities, and is a protected category under the new EEOC guidelines on discrimination against caregivers, adds Campbell. Lawsuits generally claim illegal discrimination under Title VII of the Civil Rights Act of 1964 and similar state laws, and may also be brought under the Pregnancy Discrimination Act, Americans with Disabilities Act of 1990, and the Age Discrimination in Employment Act of 1967.

To avoid problems, give everyone involved in the interviewing process training on appropriate interviewing and hiring behaviors, recommends Campbell. Options include online training, with interactive scenarios about interviews and hiring decisions, or in-person training using slides and written scenarios in a training room or offsite conference room. "When you run a 24-hour operation, scheduling for in-person training can be difficult," acknowledges Campbell. "However, this option is low-tech and can be good for small groups."

Sources

  • Katrina Campbell, General Counsel, Brightline Compliance, 1015 18th Street, NW Suite 204, Washington, DC 20036. Phone: (973) 761-1531. E-mail: kcampbell@brightlinecompliance.com
  • John W. Robinson IV, Shareholder, Employee Litigation Department, Fowler White Boggs Banker, 501 East Kennedy Boulevard, Suite 1700, Tampa, FL 33602. Phone: (813) 222-1118. Fax: (813) 229-8313. E-mail: jrobinso@fowlerwhite.com