June 1999 Bulletin

Don't ask for trouble when hiring staff

Law forbids questions about citizenship, race, pregnancy, age, disability

By Alisa B. Arnoff

When interviewing a prospective employee what is it you really want to know? Or need to know? Some requests for information may be perfectly legitimate, such as experience and education. Some information may be legal to request, but have no bearing on the person's abilities, such as whether he favors the Chicago Cubs or White Sox. Then there is that information the law forbids you to request.

Prohibited inquires

Memorize this list of what not to ask-it is not exclusive, but simply meant to provide background for topics to be wary of:

Citizenship: Have you ever lived in a foreign country?

Race: What race are you?

Pregnancy: Are you expecting, pregnant, planning to have children?

Age: State your date of birth, age or year of high school graduation.

Disability: Are you HIV positive? suffering from carpal tunnel syndrome?

Religion: Are you Jewish, Catholic?

Use of Alcohol and Drugs

You may ask:

You can ask about alcohol use in a limited fashion:

Do not ask:

Availability for work

You may wonder whether someone's religious belief prevents them from working regularly. Do not ask "Does your religion prevent you from working week- ends and holidays?" You can say, "This position requires that you work weekends and holidays. Are you able to do this?"

Although you cannot ask about someone's health, you can learn whether your attendance requirements will be met. For example, state your attendance policy and ask whether the applicant can handle that. Or, ask about the applicant's prior attendance record without inquiring as to the specific reasons for his absences.

Disabled applicant

Do not ask about a disability. You can ask:

Do not ask whether an applicant needs reasonable accommodation for the job unless the need is obvious (i.e., the applicant is in a wheelchair or accompanied by a guide dog). If so, then it is all right to ask:

If an applicant volunteers that he is disabled and needs a reasonable accommodation to perform the job, a host of restrictions applies. These include not asking:

This article covers only the tip of the iceberg with respect to proper interviewing techniques; be sure to seek legal advice, especially with respect to disability-related issues. Yet remember that reducing liability for failure to hire includes the following:

Do not ask direct questions about the applicant's status or permanent characteristics, such as race or age.

To find the person best qualified for the position under the law, ask questions about the applicant's ability to perform specific, job-related functions.

Follow the same interviewing procedures for everyone.

Focus on ability, not disability.

Alisa B. Arnoff is a Chicago labor and employment attorney. She can be reached at aba@sacounsel.com

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