A reader asks: "Is it me, or has job interviewing become really complicated?"

Last week, I wrote about the two situations in which an employer should ask an applicant about a disability or a religious belief or practice that might require reasonable accommodation. (As I emphasized last week, 99 percent of the time, you should stay away from these topics in job interviews.) My post prompted one reader to ask some follow-up questions that I think are worthy of another post.

Q. You wrote about disability and religion, but what about pregnancy? That one has me stumped.

A. You and everybody else. As you know, the Equal Employment Opportunity Commission now says that pregnancy "and related conditions" must be reasonably accommodated if the employer accommodates employees with disabilities, which of course it is required to do under the Americans with Disabilities Act. Many state and some local laws also require pregnancy accommodation. Assuming the EEOC's new Enforcement Guidance is the law of the land for now, or if you are in a state or city that requires pregnancy accommodation, I would apply the same principles to pregnancy that I discussed last week with respect to applicants who may need disability or religious accommodations. In other words, I would avoid discussion of an applicant's pregnancy 99 percent of the time.

The extent of an employer's duty to make reasonable accommodations for pregnancy under the federal Pregnancy Discrimination Act is going to be decided by the Supreme Court sometime next year (oral arguments are scheduled for December 3). It is possible that the Court will disagree with the position taken by the EEOC, in which case the EEOC will have to abide by the Court's decision. However, the Supreme Court decision will not affect state or local laws requiring pregnancy accommodation.

I would talk about pregnancy in the interview if, and only if,

*The pregnancy is obvious, AND it could disqualify the applicant from consideration.  (For example, the applicant is eight months pregnant, and she's applying for a stevedore position.) In that case, I might explain the duties of the job and ask how the applicant would perform those duties. That could lead to the beginning of the reasonable accommodation "interactive process," and in this limited situation I think that would be fine.

*The applicant volunteers that she is pregnant, AND it could disqualify her from consideration. If the pregnancy would not preclude her from consideration, then your only response should be, "A baby -- how wonderful! Congratulations!" (And then hire her, or be darned sure that whoever you hire instead is demonstrably more qualified for reasons having nothing to do with pregnancy.) But if she brings up the pregnancy and it seems that this would be a "deal breaker," then you should be able to engage in the reasonable accommodation "interactive process." Start by explaining the job duties and physical requirements, ask her how she would perform those functions, and let it flow from there.

Q. But interviewers without a lot of skills may open a Pandora's box when they delve into these areas. We've always told our employees to avoid discussion of disability, religion, etc., and not to document it if the employee brings it up. We tell the applicant it won't be included in the [hiring] score, and if they are selected, we will discuss accommodation at a later date.

Your current practice is probably fine, provided that (1) you always hire the applicant with the obvious disability, religious conflict with your job requirements, or pregnancy (I'm going to refer to disability/religion/pregnancy as "DRP" from now on) or who mentions it in the interview, or, if you don't, (2) the DRP applicant never challenges your decision not to hire.

But I suspect that you live in the real world, and that there are times when there may be better candidates available, or when you really can't make an accommodation, or when a rejected candidate may be upset about the rejection and want to take legal action. If you don't document, then you and the candidate may have the dreaded fact dispute about what was said, which (in the event of a failure-to-hire lawsuit) means your case will go to a jury. Documentation is no guarantee that there won't be a fact dispute, but it does tend to make it harder for the plaintiff to claim that something different happened.

Rather than documenting nothing, which leaves you legally vulnerable if it really did come up in the conversation, I'd suggest documenting something like the following:

"Applicant mentioned that she is three months pregnant and asked whether that would be a problem for us. I told her absolutely not, and explained our maternity benefits to her. I told her we were interviewing other candidates and would select the most qualified candidate, but that her pregnancy would not count against her in any way."

Or this:

"Applicant was visibly pregnant. I explained that the job entailed continuous lifting and moving of crates weighing 150 lbs. I told her that the pregnancy would not disqualify her from consideration for this job and also explained that we were willing to make reasonable accommodations if we could. She said that she had not realized that so much lifting was involved. She said she did not want to take a risk with her pregnancy and said she would wait and apply again after the baby was born. I told her that we are usually in 'hiring mode' for these jobs and that she would be welcome to reapply whenever she felt comfortable doing so."

Now, the above is obviously not "HR 101." If your interviewers are less than highly skilled and experienced, you might want to tell them to do something like this instead:

PROBLEM: Applicant Mentions Something DRP That Could Perhaps Be Accommodated.

SOLUTION: Punt to the HR Boss.

"I'm a Seventh-Day Adventist, and it's a sin for me to work between sundown Friday and sundown Saturday. But I can work Saturday nights and Sundays."

"Thanks for letting me know. I will check with our Human Resources Director about that, and one of us will be back in touch with you. Will that be all right?"

[Then continue with rest of interview. After interview, document that this came up and what you said and did about it. Notify HR director or equivalent and let him or her take it from there.]

PROBLEM: Applicant Mentions Something DRP That in All Likelihood Cannot Be Accommodated.

SOLUTION: Punt to the HR Boss.

"I have a mental illness that makes it impossible for me to work under supervision. Is that a problem?"

"Let me check with our Human Resources Director about that, and one of us will be back in touch with you. Is that all right?"

[Then continue with rest of interview. After interview, document that this came up and what you said and did about it. Notify HR director or equivalent and let him or her take it from there.]

Pretty easy, huh?

Q. And while you're at it, can you give us some pointers for conducting interviews that we can share with our junior people?

A. Of course!

*Don't make comments or jokes about race, national origin, color, sex, age, sexual orientation, gender identity, or any other protected characteristic. The same goes for DRP unless the employee brings it up and it appears that a reasonable accommodation needs to be discussed.

*Don't ask a question that would, as the EEOC says, "tend to elicit information about a disability." That means no questions pre-offer about number of days missed because of illness, prior workers'  comp claims, medical conditions, psychological or psychiatric conditions, medications, etc., etc. Questions like this at the pre-offer stage violate the Americans with Disabilities Act.

*Don't ever ask about candidates' child-bearing plans, or the lack thereof. If you ask about child-care arrangements (or reliable transportation to and from work), be sure you ask the same question(s) of all applicants.

*Focus your questions on the duties of the job and the candidate's ability to perform the job in terms of education, skills and experience.

*Avoid making stereotypical assumptions about what a candidate can do, especially if those assumptions may be tied to a legally protected characteristic. (For example, "Sheesh, another mom - just what we need! She'll be wanting to leave early every night to pick up the kids from day care, and she'll want off every time they're sick.")

*Small talk and chit-chat in an interview are fine, but don't pry into the candidate's personal life - you may find out things you'd rather not have known and are illegal to consider.

*Do feel free to assess "intangibles" that are not connected with the applicant's protected status, such as honesty, appropriate dress and grooming, cleanliness, personability, sense of humor, assertiveness, or whatever else you consider important for the candidate to fit in well at your workplace. But don't disqualify people who don't seem to "fit in" because of a protected status, such as national origin, age, religion, or disability.

*If you are unsure about how to handle an issue that arises in an interview, punt to your HR boss (in a nice way), and continue with the remainder of the interview.

Many thanks to the reader who sent me these excellent questions!


Here's everything you need to know about the OFCCP's new minimum wage rule for certain federal contractors, from Angelique Lyons.

And if you're a federal contractor, do sign up for Cara Crotty's webinar on the OFCCP's new scheduling letter and itemized listing. The webinar will be from 2 to 3 p.m. Eastern on Wednesday, October 15.

Finally, please join me for a webinar on "Off-Duty Domestic Violence: What's an Employer to Do?" with the ClearLaw Institute from 3 to 4:15 p.m. Tuesday, October 14. If you're a Constangy client, you should have received an email with a code that will give you 35 percent off the standard price. Can't beat it with a stick!

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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