Asking for Trouble

Hiring a new employee is full of decisions with legal significance, like whether or not to conduct a background check or whether to review the applicant’s social media pages. While these are certainly important issues, it is also important to consider the questions you may or may not ask during the interview process.

It is fairly obvious that you should not ask an applicant what religion they practice, their nationality or age. After all, Title VII includes religion and national origin as a protected classes, and the ADEA forbids discrimination against workers older than 40. However, you may ask an applicant if there are any days, weeks or time period when he or she cannot work, to determine their availability, or you can ask an applicant if he or she speaks any other languages, if it is relevant to the job, if you’re concerned about English fluency. Age questions, on the other hand, are generally only allowed to determine if an applicant is legally old enough to work for your business. However, other areas become more complicated

You may not ask a candidate if she is pregnant, if she intends to become pregnant or if she would return to work after maternity leave. However, if you are concerned about this particular area, there are questions you may ask. Inquiring into the candidate’s ability to work overtime and travel (if relevant to the job) should alleviate any concerns about whether family obligations will cause a problem. Similarly, asking the candidate about long-term career goals is proper and will allow you to gauge her commitment level.

The hiring of smokers and obese workers has become something of a hot-button issue lately, but asking if a candidate smokes is not advisable. While it is likely a poor choice to deny employment based solely on smoking, you could ask if he or she was previously disciplined for violating company policies regarding the use of tobacco products. Similarly, while you should not ask a candidate’s weight or body-mass index, you may inquire about the candidate’s ability to perform the necessary job functions, like standing for certain periods or frequent bending and lifting.

Finally, and often most confusing for employers, you cannot ask a candidate about disabilities. However, you may ask the applicant whether or not they are able to carry out the necessary job functions and perform them in a safe manner. You should not ask the applicant about any accommodations he or she may need until you have determined that the candidate is qualified for the job and you are considering them for employment. At that point, you will have to determine whether you can make reasonable accommodations for the applicant’s limitations, preferably with the assistance of legal counsel.

Prior to interviewing, you should prepare a list of questions with your legal counsel. A prepared list of questions will help you avoid asking any illegal or inappropriate questions, and also ensure that none of the candidates receive treatment that could be deemed favorable.

Anatomy of an EEOC Charge

When an employee believes he or she has been discriminated against at work because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information under a number of federal laws, they can file a Charge of Discrimination with the Equal Employment Opportunity Commission. All of the laws enforced by the EEOC, except the Equal Pay Act, require an employee to file a charge before filing a job discrimination lawsuit.

The employee must bring the charge within 180 days from the day the discrimination took place, or within 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. With allegations of age discrimination, the filing deadline only extends to 300 days if there is a state agency enforcing the law. The filing deadline applies to each incident of alleged discrimination, unless continuing harassment is alleged, in which case the employee must file within 180 or 300 days of the last incident of harassment.

Once the employee files the charge with the EEOC, you will receive a notice and copy of the charge within 10 days. At this point, it is advisable to retain legal counsel to represent you. Make sure that you, and any other employees, do not take any adverse action against the employee filing the charge, as retaliation can lead to additional liability. The EEOC will encourage you and the employee to attend a mediation session, where a mediator will try to help you reach a voluntary statement.

If mediation is not used or is unsuccessful, then the EEOC will investigate the employee’s allegations. The length of the investigation depends on the allegations and the amount of information needed. Depending on the charge, the EEOC may visit you in order to interview employees and gather documents. If you refuse to cooperate (which is not recommended), the EEOC can obtain a subpoena to require you to provide access to company property, obtain documents and compel testimony.

After the investigation is completed, if the EEOC finds a violation, it will attempt to reach a voluntary settlement with you. In the event that the settlement negotiations are unsuccessful, the agency will refer the case to its legal staff to file a lawsuit. The EEOC has limited resources, and only tends to file lawsuits in very serious cases. If the EEOC’s legal staff decides not to file a lawsuit or if the EEOC does not found a violation, it will send the employee a Notice-of-Right-to-Sue, which gives permission to file a lawsuit on their own. Once the employee receives a Notice-of-Right-to-Sue, they will have 90 days to file a lawsuit, which will begin the normal civil litigation process.

Where a violation is found, the employee may be entitled to reinstatement, promotion or back pay, and you will be required to remedy the discriminatory practices and take steps to prevent discrimination in the future. Employees are also eligible to recover attorney’s fees, expert witness fees and court costs. However, there are limits on the compensatory and punitive damages that an employee may recover depending on the size of your business:

  • 15-100 employees = $50,000
  • 101-200 employees = $100,000
  • 201-500 employees = $200,000
  • More than 500 employees = $300,000

And for intentional age discrimination or intentional sex-based wage discrimination, while compensatory and punitive damages are not available, the employee may be entitled to liquidated damages equal to the amount of back pay awarded.

The most important thing to remember is to seek legal counsel as soon as you receive the EEOC Charge. You may be able to have the charge dismissed quickly with an attorney’s assistance, which can discourage an employee (and more importantly the employee’s potential attorney) from filing a lawsuit in court.