At the NARI Fall Leadership Summit 2013, Barnes & Thornburg attorney John F. Kuenstler of Chicago offered detailed insights into what makes a legally sound hiring process. Given the number of questions he fielded from attendees during “Hiring on my Mind,”, this topic resonated with NARI members—who know they need the best possible employees to do top-caliber work, but also want to avoid the pitfalls of hiring the wrong candidates for the job.
Kuenstler first focused on the interview process, noting that federal and state laws control what questions are permissible and which should be avoided. In general, permissible questions assess the applicant’s ability to perform the “essential functions” of the job for which the applicant is applying. In other words, can the applicant fulfill the specific job requirements of that position?
Asking these “essential functions” questions serve several purposes, he noted. First, they allow the employer to select employees based on legitimate criteria, and they help identify an applicant who is well-qualified for the job. These requirements also help provide focus to your line of questions during the interview. And, if necessary, these questions may assist in the defense of any future discrimination claim.
If possible, use creativity to formulate your job-related questions so that they yield helpful information while still remaining within the law. One example might be an open- ended question such as, “Tell me about your boss at your former job.”
Employers should always avoid questions that focus on race, color, religion, sex, national origin, age, disability or veteran status. Companies should also follow Equal Employment Opportunity Commission Guidelines and avoid pre-employment inquiries that screen out applicants based on gender or membership in a minority group or other protected class unless justified by “business necessity.” Kuenstler also advises companies to avoid questions concerning genetic information or genetic testing, as well as questions concerning tobacco use during non-work hours.
Next, Kuenstler focused on the importance of having a written job description. One important benefit is that doing so allows the company to document each job’s essential functions.
“I can’t stress this enough from a legal and HR perspective,” he said. “It’s almost your interviewing script: Are you interested in performing these duties? Are you able to perform these duties?”
In preparing written job descriptions, the employer should pinpoint the job’s truly essential functions. The description should include all essential job functions, and the description must conform with the true job requirements. In other words, for job descriptions to provide legal protection, they must be accurate. And to be accurate, job descriptions must be reviewed and updated regularly.
Kuenstler offered the following example of how an out-of-date job description could hurt the company: A client faced a discrimination claim from an applicant who could not climb a ladder, listed as an essential duty of the job for which she applied. Upon visiting the job site and asking to see the ladder, Kuenstler was met with a blank stare. It turns out the current job holder had been there for many years and had never once had to climb a ladder in order to do his job. “That case got settled quickly,” he said.
The Americans with Disabilities Act also raises special issues for employers. Under the ADA, employers cannot discriminate against an applicant who can perform the essential functions of the job with or without a reasonable accommodation. Kuenstler stressed that employers cannot reject applicants merely because they do not want to accommodate them. Instead, employers must consider whether it would be “reasonable” to provide the applicant with accommodation so he or she can do the job.
“It’s up to them to disclose any disability, which is where that updated job description comes in handy,” he said. “Show them the top job description and ask them if they are able to do everything listed. The focus of interview questions should always be positive and ask about what the applicant can do rather than what he can’t do.”
The employer can ask: “Can you perform the essential job functions with or without reasonable accommodation?”
That does not mean you have to make that accommodation if it does not seem reasonable, he added. For example, if climbing stairs is an essential job function, you don’t necessarily have to add an elevator. But if doing data entry is an essential job function, and you can buy a special keyboard for $50 that will allow the applicant to perform that essential function, then that is a reasonable accommodation.
Kuenstler also noted that alcoholics and former drug addicts are considered disabled and are protected by the ADA. “Employers cannot ask if an applicant is an alcoholic or a recovering drug addict,” he said. “But the employer can ask if the applicant currently uses illegal drugs or alcohol.”
Part 2 will look at common assessment devices such as reference checks, credit checks and background checks.—Darcy Lewis
To download the slides from this presentation, click here.