Key Point 8-26. Many employers interview applicants for employment. There are several state and federal laws that regulate the kinds of questions that may be asked.
A. In General
It is common for employers to interview applicants for employment in addition to having them complete a written application. This practice provides the employer with an opportunity to assess applicants’ suitability for a particular position. Church leaders should understand that several state and federal laws may restrict the kinds of questions that may be asked during an employment interview.
Employers are legally entitled to ask questions that will help them determine if an applicant meets the requirements for a job. But, certain questions are not relevant to an applicant’s qualifications and should not be asked. For example, questions about an applicant’s race, national origin, disabilities, or age generally are not relevant to an applicant’s ability to perform the requirements of a job, and should not be asked. In rare cases, such questions may be permissible if they are intended if based on a “bona fide occupational qualification.” Also, state and federal laws banning discrimination in employment on the basis of religion generally contain broad exemptions for religious organizations. As a result, it generally is permissible for religious organizations to exclude or prefer persons for employment on the basis of religion.
Tip. Church leaders should periodically review questions that are asked during interviews, or on employment applications. Look at each question and ask, “Why are we asking this question? Is this information relevant to the qualifications for this position?”
Table 8-4 summarizes the legal status of several kinds of questions. The table is not exhaustive and there may be exceptions. It assumes that an employer is covered under applicable state or federal nondiscrimination laws. The coverage of churches and other religious employers under state and federal employment discrimination laws is addressed previously in this chapter.
Also, note that the “ministerial exception” generally bars the civil courts from reviewing decisions by churches and other religious organizations regarding the selection of ministers. This exception permits religious organizations to ask applicants for ministerial positions any questions they wish. See section 8-10 in this chapter.
B. The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) makes it unlawful for a covered employer to discriminate against a qualified applicant or employee with a disability. The ADA applies to private employers having 15 or more employees and engaged in commerce. The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA.
The ADA defines an individual with a disability as a person who: (1) has a physical or mental impairment that substantially limits a major life activity, (2) has a record or history of a substantially limiting impairment, or (3) is regarded or perceived by an employer as having a substantially limiting impairment.
An applicant with a disability, like all other applicants, must be able to meet the employer’s requirements for the job, such as education, training, employment experience, skills, or licenses. In addition, an applicant with a disability must be able to perform the “essential functions” of the job (the fundamental duties) either on her own or with the help of “reasonable accommodation.” However, an employer does not have to provide a reasonable accommodation that will cause “undue hardship,” with significant difficulty or expense.
The ADA prohibits employers from asking questions that are likely to reveal the existence of a disability before making a job offer (i.e., the pre-offer period). This prohibition covers written questionnaires and inquiries made during interviews, as well as medical examinations. However, such questions and medical examinations are permitted after extending a job offer but before the individual begins work (i.e., the post-offer period).
Although employers may not ask disability-related questions or require medical examinations at the pre-offer stage, they may do a wide variety of things to evaluate whether an applicant is qualified for the job, including the following:
- Employers may ask about an applicant’s ability to perform specific job functions. For example, an employer may state the physical requirements of a job (such as the ability to lift a certain amount of weight, or the ability to climb ladders), and ask if an applicant can satisfy these requirements.
- Employers may ask about an applicant’s non-medical qualifications and skills, such as the applicant’s education, work history, and required certifications and licenses.
- Employers may ask applicants to describe or demonstrate how they would perform job tasks.
Once a conditional job offer is made, the employer may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category. If the employer rejects the applicant after a disability-related question or medical examination, investigators will closely scrutinize whether the rejection was based on the results of that question or examination. If the question or examination screens out an individual because of a disability, the employer must demonstrate that the reason for the rejection is “job-related and consistent with business necessity.”
In 1995, the EEOC issued a document entitled “ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations.” This document addresses the kinds of questions that can, and cannot, be asked by employers. Its conclusions are summarized in Table 8-5.
Key Point. At the pre-offer stage, an employer cannot ask questions that are likely to elicit information about a disability. This includes directly asking whether an applicant has a particular disability. It also means that an employer cannot ask questions that are closely related to disability. On the other hand, if there are many possible answers to a question and only some of those answers would contain disability-related information, that question is not “disability-related.”
Key Point. An employer may not ask a third party (such as a service that provides information about workers compensation claims, a state agency, or an applicant’s friends, family, or former employers) any questions that it could not directly ask the applicant.
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After giving a job offer to an applicant, an employer may ask disability-related questions and perform medical examinations. The job offer may be conditioned on the results of post-offer disability-related questions or medical examinations. At the “post-offer” stage, an employer may ask about an individual’s workers compensation history, prior sick leave usage, illnesses, impairments, and general physical and mental health. Disability-related questions and medical examinations at the post-offer stage do not have to be related to the job. If an employer asks post-offer disability-related questions, or requires post-offer medical examinations, it must make sure that it follows certain procedures: (1) all entering employees in the same job category must be subjected to the examination or inquiry, regardless of disability; and (2) medical information obtained must be kept confidential.