Q&A: Avoiding Unlawful Discrimination in Interviews

What questions can—and can’t—we ask prospective employees and their references?

We are trying to fill a vacant position on our church staff. Because we’re a small church, consistent attendance by our employees is crucial. Is it legal in an interview to ask approximately how many days in the past year a prospective employee has been absent from work? Can I ask the prospective employee’s references this question?
Asking these questions could lead to charges of unlawful discrimination against your church. But first we must determine whether the nondiscrimination statutes apply to your church. If your church is small enough (less than 15 employees), then the federal nondiscrimination statutes do not apply. Second, though you did not indicate your city, county and state, it is helpful to note that most states and many cities also have nondiscrimination statutes. They may apply if the federal statute does not apply. So you will need to research your state, county and city to determine whether nondiscrimination laws apply to your church in any of those domains.
If any nondiscrimination statutes apply to your church, then you cannot ask about prior absences because the answers provided may lead to unlawful discrimination based on the Americans with Disabilities Act (or the state, county or city equivalent). Also, many state workers’ compensation statutes prohibit discrimination against those who have previously filed workers’ compensation claims. Since your question could cause an applicant to reveal prior workers’ compensation claims, your question is illegal in those states.
However, there may be a way to ask the question in such away that it avoids unlawful discrimination. Instead, you may ask, “Since we are a small church, this job demands that you show up for work on time, everyday. Do you know of any reasons you could not fulfill this job requirement? Have you had a similar job requirement in your prior positions? If so, how did you perform on this requirement?” Since you have tied your questions back to your current job description and requirements, it is unlikely that you will be challenged on these questions.
Finally, the same rules apply to reference checks. You can ask the prospective employee’s references the same legally allowed questions that you can ask an applicant.
Frank Sommerville is a both a CPA and attorney, and a longtime Editorial Advisor for Church Law & Tax.

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