Contributed By Barnes & Thornburg LLP (Indianapolis - HQ)
The pre-hire and interviewing process is a significant opportunity for Indiana employers to use the process wisely to identify and hire the strongest candidate for the positions in question. Prior to the employment interview, employers should consider requiring applicants to complete an employment application which accurately describes prior educational and work history, reasons for leaving prior employment, references, and any special skills. While many applicants currently seek to replace completing the work history part of the application with a resume, employers should consider requiring the applicants to complete the application as well, as the questions on the application seek additional information not included on a resume, such as dates of employment and reasons for leaving.
As a best practice, the employment application should include a certification by the applicant that he or she provided complete, accurate and truthful information on the application. This certification provides employers with a means to limit or mitigate damages in an employment discrimination case. The employment application also should contain an affirmation of the “at-will” nature of the employment relationship, and employers should refrain from making verbal or written assurances of “long term” or “permanent” employment, or other statements that could adversely affect the employer’s ability to successfully assert that the employee was employed at will at a later time. In addition, to the extent that any post-offer testing is to be conducted, employers should include that information in the employment application to ensure that applicants are aware of the requirements and allow them to request reasonable accommodations, if needed.
The employment application and the interview process, as a best practice, should not ask questions or elicit information about legally protected characteristics, such as age, national origin/race, religious practices, pregnancy or desire to have children, sex, sexual orientation or gender identity, or medical conditions or disabilities, and similarly should avoid questions that would elicit this type of information.
A common aspect of the hiring process is a limited criminal background check for the successful candidate. While this due diligence provides benefits for employers, such as a defense to a negligent hiring claim and the avoidance of a high-risk hire, this is an area of the law that is currently evolving on the national, state and local level. The Equal Employment Opportunity Commission has taken the position that given the fact that minorities are disproportionately adversely affected with regard to both convictions and arrests, criminal convictions should only be considered if it is job-related to the particular position being sought. Employers should consider doing a case-by-case analysis, and review the type of conviction, the date of the conviction, the nature of the job in question, and any exceptional circumstances before making a decision about employment based on a criminal conviction. Indiana has enacted a law that makes it unlawful for employers to refuse to employ or discriminate against a person because of a conviction that has been expunged. In addition, numerous cities across the country have been enacting so-called “ban the box” laws that prohibit even having questions about criminal backgrounds on the employment application. For example, Indianapolis has enacted an ordinance applicable to any company doing business with the City. Thus, requests for background checks and the process must be appropriately tailored to the state and local laws, and proper authorization must be acquired when third party vendors are used for this purpose prior to completing the background checks.
Another common component of a background check involves credit checks. Again, because credit checks tend to disproportionately disqualify minorities, it is best practice to conduct a similar analysis of the job-relatedness of a credit check to the position in question to avoid unnecessary legal exposure.
The Americans with Disabilities Act (“ADA”) also imposes restrictions on employers with regard to what information can be sought or discussed during the hiring process. The ADA generally prohibits employers from any pre-employment inquiries about an applicant’s medical condition. Thus, the employer may not ask any questions designed to elicit medical information prior to a conditional job offer being made.
After a conditional offer of employment has been made, the employer may then conduct a post-offer medical examination, provided that this is required of all applicants for the position. However, to withdraw an offer of employment, the employer must be able to demonstrate that the individual is unable to perform the essential functions of the job in question, even with reasonable accommodations. Thus, to the extent that post-offer testing is to be completed, employers should ensure that the components of the test directly correlate to the essential functions of the position.
Employers may also require physical agility testing. Depending on how these tests are constructed, they may or not be considered a “medical examination” under the ADA. For example, if an agility test simply requires an employee to pick up products and carry them a certain distance, such a test would not be a medical examination. However, if the tester measures the employee’s physiological response to the activity (e.g., pulse and blood pressure), the test very well may be considered a medical examination subject to the ADA restrictions on such testing. Even such agility tests must be job-related and consistent with business necessity, in essence accurately depicting the physical demands of the position in question. As this is a highly technical area of the law, employers are well advised to seek legal assistance with these determinations.
The Genetic Information Nondiscrimination Act (“GINA”) similarly imposes restrictions on employers during the hiring process (and afterward), making it unlawful for employers to request genetic information with respect to employees. Because genetic information is defined broadly to include family medical history, employers should ensure that any post-offer medical examinations, even those conducted by occupational doctors, do not elicit this information.
Finally, the ADA requires employers to provide reasonable accommodation to disabled applicants to permit them to participate equally in the hiring process. While reasonable accommodations may take many forms, such as having an interpreter for a hearing-impaired applicant, administering a test in an accommodated format (more time, reading the questions, answering in a different format (e.g., dictating), ensuring access to the testing site, etc., the employer is not required to “carve off” essential functions of the position in question as such an accommodation would not be reasonable.