Bent Ericksen and Tim Twigg
A doctor interviewed an applicant for a dental assistant position and suspected she was pregnant. He asked, "Will you have to take any extended time off for any reason within the next several months?" The applicant replied that she was pregnant and would be going on a maternity leave in a few months. She was not hired and the doctor was sued for pregnancy discrimination. He lost the suit.
Considerations
In making employment decisions, it is unlawful to discriminate on the basis of an applicant's race or ethnic group, national origin or citizenship status, religion, sex (and, in some states, sexual orientation), age, marital status, or disability. Discrimination on the basis of pregnancy, childbirth, or related medical conditions is considered sex discrimination under Title VII of the Civil Rights Act of 1964. Raising a topic or asking a question pertaining to any of these protected subjects could be discriminatory if the effect is perceived by the applicant to have put him or her at an employment disadvantage. While employers are permitted to ask the question listed in the case above when interviewing applicants, the doctor's attorney explained that he would not be able to prevail in court and suggested a settlement!
Solutions
Generally speaking, in interviewing prospective employees, if a question is not related to important or essential job duties, skills, work behaviors, and attributes, it should not be asked. Avoid questions related to:
• An applicant's feelings about working with co-workers of different races or cultures.
• Where (what country) an applicant, the parents, or spouse was born.
• The applicant's maiden name, marital status, number and ages of children, pregnancy or future child-bearing plans, or child-care arrangements.
• Age or the dates of attendance at elementary or high school.
• The applicant's physical condition or disability, or whether he or she has ever been treated for specific diseases or medical conditions.
• Workers' compensation and if the applicant has ever filed for it. (Note: This question can be asked after a job offer has been made. Make the job offer pending satisfactory background and reference checks.)
Some steps you can take to help you hire the best person and prevent charges of discrimination are:
1 Analyze each job systematically to identify the competencies (technical knowledge, skills, etc.) needed for successful job performance.
2 From your written job description, develop a "Hiring Profile" that includes the essential duties and responsibilities of a job, as required by the Americans with Disabilities Act (ADA). Include the position's specific characteristics, work conditions, major duties and responsibilities, and expected outcomes. Also include the necessary or desired qualities that a successful employee should possess.
3 Develop a standard set of questions designed to elicit information on an applicant's past work-related accomplishments, activities, and job performance. Questions should focus on what an applicant says he or she has done, not on what the applicant would or should do.
4 Ask the same basic questions of all applicants and make note of the answers on an Interview Evaluation Form. (Note: This can be done during or after the interview at the employer's discretion.) By doing this, you will be able to prove that you hired the most capable person for the job and that no discrimination took place.
What went wrong in the situation we described at the beginning of this article, where the doctor asked a question that he could legally ask of any applicant? Why did his attorney suggest that he settle out of court?
Quite simply, the doctor had not taken the necessary steps to protect him from a possible charge of sex discrimination. Specifically, he had not asked every person he interviewed, "Will you have to take any extended time off for any reason within the next several months?" Even if he had, it would have been hard to prove, because he did not have a written record of the specific questions he had asked of each applicant and their answers. The doctor couldn't prove that he hired the most qualified person for the job and that the applicant's pregnancy had not played a role in his hiring decision.
Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For over 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. Both authors are members of the Academy of Dental Management Consultants. To receive a complimentary copy of the company's quarterly newsletter or to learn more, contact them at (800) 679-2760 or at www.bentericksen.com.
