Today’s labor and employment laws provide a wide range of protections for job applicants. This is most apparent in the area of discrimination. Under federal, state and local laws, it is unlawful to discriminate against job applicants on the basis of numerous characteristics. These laws create risks throughout the hiring process, largely based on questions raised on application forms and during job interviews. Indeed, casual questions asked in good faith often become fodder for discrimination charges when the applicant involved does not get the job. This article highlights five types of questions that veterinary practices should avoid asking job applicants and shows how to obtain related information, when necessary, without setting oneself up for a legal claim. 1. When did you graduate from high school? Under the federal Age Discrimination in Employment Act (ADEA) and similar state laws, it unlawful to discriminate against applicants on the basis of age. Specifically, ADEA places applicants and employees who are 40 years or older into a legally protected class. If an applicant in this age group is denied employment after being asked, “When did you graduate from high school?”, then she may have grounds to charge the employer with age discrimination. The applicant could argue that the question was a pretext for determining the applicant’s age, which was then used as an unlawful criterion to weed her out. Similar questions that could give rise to ADEA liability are “How old are you?”, “When did you finish college?” and “What is your birthday?” If the answer would reveal that the applicant is 40 or older, then she may become suspicious—and litigious—if turned down for the job. If age is a legitimate criterion for the position, then the employer should ask about it directly. For example, if the job could not be performed by a minor, then it would be permissible to ask, “Are you over the age of 18?” 2. Have you ever been on worker’s compensation leave? Under the federal Americans with Disabilities Act (ADA) and its state counterparts, it is unlawful to discriminate against applicants on the basis of disability. ADA protects not only individuals who have a current disability but also those who have a history of a disability or who are regarded as having a disability. Questions about an applicant’s worker’s compensation history may invite a charge of disability discrimination. Upon receiving the employer’s rejection notice, the applicant may suspect, based on these questions, that she was rejected because of an actual, prior or perceived disability. Why else would these questions have been asked? Other inquiries that might lead an unsuccessful applicant to file an ADA claim against a veterinary practice are, “Do you have any disabilities?”, “Have you had any illnesses or surgical procedures recently?” and “Did you receive a clean bill of health at your last physical exam?” In each case, the question does not address the applicant’s ability to perform specific job duties, but instead seeks generalized information about her health. If the job has physical requirements, such as the ability to lift 40 pounds, then it is permissible to review the job description with the applicant and ask, “Are you able to perform the essential functions of the job with or without a reasonable accommodation?” This will help determine the applicant’s qualifications without unearthing unnecessary information about any disability that she may have. Also, after an applicant is given a conditional job offer but before she starts work, the practice may make disability-related inquiries as long as it is done for all entering employees in the same job category. If, at this point, the applicant is screened out because of a disability, the employer must show that the exclusionary criterion was job-related and consistent with business necessity in order to avoid liability. 3. What are your childcare arrangements when you are at work? Under Title VII to the Civil Rights Act of 1964 and cognate state law, it is unlawful to discriminate against applicants on the basis of gender. This prohibition extends to hiring decisions made on the basis of gender stereotypes. To illustrate, if the applicant is female, questions such as “What are your child-care arrangements when you are at work?” may be perceived as an unlawful screening tool based on the stereotype that women are the primary caregivers to their children and, as such, may be less reliable as employees. If the applicant in this example does not get the job, she may have grounds to charge the practice with discrimination under a gender-stereotyping theory. Similar questions that could lead to gender-stereotyping claims under Title VII are, “How many children do you have?”, “Do you plan to have a family?” and “Who do you live with?” These questions do not address whether the applicant can perform the duties of the job, but instead seek personal information about her family life. When a job has a special requirement, such as the need to work occasional Saturday shifts, the employer should ask about it directly. In this example, the employer could lawfully state: “The job would require you to work on Saturday from time to time. Would you be able to do this as necessary?” Of course, such questions should be posed to all applicants for the job. 4. Have you ever been arrested? Questions about criminal history are extremely risky. Some states and localities have “ban the box” laws prohibiting private employers from including on job applications any questions or check boxes about arrests or other criminal history. Some jurisdictions go even further. For example, Illinois generally prohibits employers from asking about an applicant’s criminal history until the applicant has been determined to be qualified for the position and notified that she has been selected for a job interview. If an interview is not needed, then no such inquiry can be made until after a conditional offer of employment has been made. There is presently no federal “ban the box” law applicable to private employers. However, the Equal Employment Opportunity Commission (EEOC) recommends voluntarily banning the box as a best practice. Additionally, under current EEOC guidance, a private employer that rejects an applicant on the basis of criminal history may be found to have violated Title VII if the rejection was not based on an individualized assessment of such factors as the nature of the crime, the time elapsed since the crime occurred and the nature of the position. The takeaway is that veterinary employers should not question applicants about criminal history or seek criminal history records from third parties without first consulting with experienced employment counsel. 5. What is your present hourly wage or salary? Various states have passed pay-equity laws. Under these laws, employers typically may not prohibit employees from discussing their compensation with each other, as such discussions are believed by lawmakers to bring pay inequality out of the shadows. Massachusetts’ new pay-equity law goes further, prohibiting employers from asking applicants to disclose their wage or salary histories until after an offer of employment with compensation has been made. If other states follow suit, then employers in those jurisdictions will need to modify their job applications and interview practices to avoid pay-equity claims. These five examples of risky questions are by no means exhaustive. To be sure, they merely scratch the surface of the kinds of inquiries veterinary employers should avoid when evaluating the qualifications of job applicants. As the costs and liabilities associated with discrimination claims can be significant, veterinary practices should consider reviewing and, if necessary: Revising their job applications. Training their hiring teams on the dos and don’ts of conducting job interviews. Seeking guidance as needed from experienced employment counsel. Do you have questions about labor, employment or business laws affecting your veterinary practice? Submit them to questions@toddnewmanlaw.com. Selected questions may be answered in upcoming articles. Todd A. Newman, Esq., works closely with veterinary practices as president and owner of a Salisbury, Mass., law firm (www.toddnewmanlaw.com). He specializes in business, employment, labor and litigation matters. Originally published in the March 2017 issue of Veterinary Practice News. Did you enjoy this article? Then subscribe today!
