When Interviews Go Astray
The EEOC is seeking $8 million in back pay and damages plus court-enforced monitoring and oversight of the studio’s hiring and firing practices. The telephone interview included a blatantly impermissible question about race that a federal court found was "sufficient to give rise to an inference that the termination decision was motivated by illegal discrimination."
Lawsuits fueled by forbidden lines of inquiry are less common in this age of diversity classes and compliance training, but the legal boundaries surrounding the interview process are becoming far more complex.
"We’ve moved from the first generation of interview issues, which centered on explicitly impermissible questions about age, race and national origin, for example, to the second generation, where the problems are far more subtle and hiring managers still need more training," says Judith Keyes, an employment attorney with Davis Wright Tremaine in San Francisco.
Interviews that stray into impermissible areas carry three potential consequences, Keyes notes. An unsuccessful candidate may claim discrimination based on information that was revealed. Alternatively, a rejected candidate may claim discrimination because the line of questioning and information provided was not consistent for all candidates. Finally, a successful candidate who is later terminated may reach all the way back to the interview to show evidence of discrimination or, as occurred in the Universal case, use remarks from a separate interview to show a pattern of discrimination.
Training hiring managers
Hiring managers are the weak link in the compliance chain.
"They lack a basic understanding of employment law," says Jennifer Sandberg, an employment attorney with Fisher & Phillips in Atlanta. "They may be aware of that they should avoid potentially discriminatory behaviors with employees, but often are not aware that applicants are protected with equal force by the very same anti-discrimination laws that apply to employees."
Sandberg says that problems also arise because hiring managers often don’t have a "big picture" process for thinking about the open position and the qualifications it requires or for deciding where recruiting will occur and within what time frame. In addition, they don’t have a "smaller picture" plan for interviewing specific candidates.
This lack of planning means that hiring mangers might not see the right candidates and might stray into dangerous territory during the interviews.
"Hiring managers often talk too much and ask the wrong questions," Sandberg says. "Also, they don’t know how to respond to questions from candidates, such as queries about health care benefits for specific conditions, that can lead into dangerous territory. Managers need a plan to redirect the conversation when it goes astray."
While there may be no law against asking a specific question in an interview, courts may make inferences about why an employer is asking that question, Sandberg explains. The most common line of inquiry that can lead to discrimination claims stems from questions related to child care and child rearing.
"The hiring manager’s real concern here is that the candidate may not come to work because of child care issues," Sandberg says. "Instead of asking about the candidate’s child care arrangements, the manager should ask the candidate directly how often he or she misses work. Questions related to attendance and productivity are entirely appropriate."
Sandberg also advises managers to deal decisively and immediately with any new employee who is late or absent to avoid potential discrimination charges.
"Managers have to learn to say that the employee’s excuse doesn’t matter," she says.
"One of the most dangerous things a company can do is to allow managers to hire warm bodies," Sandberg notes. "Once they are in your organization, it’s difficult to get them out. If they are a member of a protected group, discrimination charges may follow the termination."
Breakdowns in preventive policies often occur between HR and hiring managers, particularly at multi-location companies.
"HR may have good policies in place, but if they are not disseminated to the outlying areas, problems arise," Sandberg says.
Also, application forms should be customized for each state to reflect differences in state laws.
"Undisciplined hiring practices will frequently get employers in trouble," says Margaret Hart Edwards, shareholder at Littler Mendelson in San Francisco. She advises HR and staffing executives to design open-ended interview questions that force each applicant to demonstrate whether they have the required skills and experience.
Hiring managers should be carefully trained to restrict their questions to explicitly job-related topics. Applicants should be treated alike and asked the same questions. When possible, applicants should be interviewed by more than one manager, and the same panel should interview all candidates.
"Group interviews offer the opportunity to get much more information from the applicant if the interviewers stick to their questions and logical follow-ups," Edwards notes.
The group of interviewers should rank the applicants against one another using the information obtained.
"Only the final ranking should be preserved," Edwards says.
She advises employers to avoid shortcuts in the hiring process, such as skipping reference and background checks. In addition, she suggests that employers use an offer letter with at-will language that has been reviewed by employment counsel.
Discrimination issues are particularly likely to arise when hiring managers are trying to ferret out information on the candidate’s personal, social and interactive skills. They may be more common when the candidate is under consideration for a higher-level position and the interview process includes a dinner or other social occasion, Keyes says.
Even if hiring managers know which topics of conversation to avoid, the candidate may open the door to a troublesome area in an attempt to be more likable.
"This is a major potential pitfall because the hiring managers may believe that certain conversations are permissible if the candidate initiates them," Keyes warns.
The solution is to train hiring managers to redirect the conversation to neutral terms.
"This is a complex area," Keyes says. "Obviously, a disabled applicant may tell the employer in an interview that he or she is disabled and what the reasonable accommodation would be. It is permissible for the applicant to offer this information, and for the employer to consider whether the accommodation is reasonable. But if the accommodation is reasonable, then the disability becomes a neutral part of the conversation and may not influence the hiring decision."
Keyes advises HR executives to ensure that hiring managers receive face-to-face training that includes role-playing.
"In the role-playing, a knowledgeable interviewer is confronted with an applicant who, reading from a script, leads the interviewer out onto thin ice," she explains. "The purpose of this role-playing is to impart the lesson that responses to open-ended interview questions can turn problematic and the hiring manager must steer the conversation back into permissible job-related territory."
When candidates push the conversation into a potentially impermissible area, hiring managers need to follow three steps, Keyes advises.
First, they must maintain a comfortable and relaxed atmosphere. "They must not suggest that a wrongdoing has occurred," Keyes notes.
Second, the hiring manager should suggest through words or body language that the information the candidate is giving is interesting but not pertinent.
Third, the hiring manager should pick up on a permissible neutral point and then turn that point back to a job-related line of inquiry.
In situations where the interview process extends into a dinner or another social occasion, Keyes reminds hiring managers that being under the influence of alcohol is not a defense if they are charged with discriminatory behavior.
"Although they may be in a social setting, the rules remain the same," she cautions. "And it is assumed that any information the employer elicits is subject to the rules."
If a candidate provides impermissible information at any point in the process, the company is prohibited from using it in the hiring decision.
"Hiring managers should be aware that they should not write down the impermissible information in their notes or the interview summary, and they should not share the information with anyone," Keyes warns.
The only caveat is that if the candidate’s remarks are so out of line that the actual information offered is not only impermissible but inappropriate. That inappropriate behavior may be considered in the hiring decision, Keyes says. In that case, the inappropriate behavior can be noted and shared.
Within the realm of "creative" interviewing, employers can expect that the EEOC will eventually scrutinize this approach, particularly because it often promotes different lines of discussion with different candidates, cautions Gayla Crain, managing partner at Epstein Becker Green Wickliff & Hall in Dallas.
"If employers are going to use ‘creative’ questions, they should ensure that they are using the same ones for all applicants," Crain says.
Crain also warns hiring managers that some questions, such as inquiries about the applicant’s leisure activities or hobbies, may open the door to impermissible information about religious or political beliefs.
The key is to keep small talk and story swapping within the realm of employment history and job-related topics.