By FRANK GIBSON
Special to the Saipan Tribune
Question: I was being interviewed over the telephone for a position and, as the discussion progressed, the interviewer asked me how old I was. I’m over 40. Isn’t this an EEO violation?
Before I start on this article’s topic, I would like to note that since the last two articles on payroll deductions, I am aware of several companies that have changed their policies in order to comply with the law and to provide fairness to their employees-and the employee mentioned in the last article was reimbursed for the deductions for the equipment that failed during his shift. I would like to applaud these companies for doing what is right. Hopefully, others that I am not aware of have also corrected their policies. However, I still check with cashiers and others and find that they are still being deducted. I hope their companies will also make changes to their policies and stop these unlawful deductions.
Okay, to the topic of the question-asking an applicant’s age is not in itself a violation of any EEO law, BUT it may lead to discrimination and it leaves the employer vulnerable because of having brought it up in the interview process. If this question were asked by an employer and the applicant was not selected for the position and an applicant who was younger and had less experience was selected, there might be grounds for a charge of discrimination. I say “might” as a couple of requirements have to be met: the applicant must be over 40 years of age, and the employer must employ 20 or more employees who worked for the company at least 20 weeks in the current or last year, in order to be covered by the Age Discrimination in Employment Act.
You will also note that I said “grounds for a charge.” That doesn’t mean that discrimination actually occurred. However, if a charge of discrimination is filed, then the employer must convince the Equal Employment Opportunity Commission that the reasons for not hiring the over-40 applicant were work-related and non-discriminatory. Such convincing occupies significant work time, often costs money in legal fees, and creates a lot of unneeded stress.
I can’t imagine any company appreciating their interviewer getting them into that situation. It makes sense for managers, supervisors, or human resource office staff members who do interviewing to make sure they have an understanding of the EEO laws and what questions are permissible. From “Hello” to “Thank you, we’ll be in touch,” keep the questions and conversation on the question of whether or not, and to what degree, the applicant is qualified for the job. Information regarding race, sex, national origin, age, and religion are irrelevant in such determinations and there is no reason for questions touching on these subjects to be asked. Prepare the interview questions ahead of time and screen them carefully to ensure that they do not inquire into potentially discriminatory areas. Be careful about the off-the-cuff, unplanned questions that always come to mind as the interview proceeds. It is also best to politely stop an applicant from volunteering information that could later lead to a claim of discrimination.
As I mentioned earlier, in most cases, it is not the asking of the question that is illegal, but the discrimination that takes place as a result of it. This is not the case, however, concerning disabilities. The Americans with Disabilities Act specifically prohibits asking job applicants about the existence, nature, or severity of a disability. Applicants may only be asked about their ability to perform specific job functions. The question should be, “Can you perform the essential functions of this job with or without a reasonable accommodation?” Save the discussion regarding any accommodation until after the hiring decision and the job offer has been made.
By the way, do not ask for a photograph of an applicant. If needed for identification or record purposes, a photograph should be obtained after an offer of employment is made and accepted.
Both employees and employers should be aware of what can and cannot be discussed in a job interview. For more information, you can visit the EEOC website at www.eeoc.gov.
The information contained in this column is intended as general information only. Readers should obtain professional advice before taking action with respect to their individual situations. Readers may submit questions regarding human resource issues to firstname.lastname@example.org or email@example.com.
Frank L. Gibson, SPHR, GPHR, owner of HR Support, CNMI, a Saipan-based training and consulting firm, has been a resident of the CNMI for more than 15 years. One of the founding members of the CNMI Chapter of the Society for Human Resource Management, he has worked both as a line-manager of human resources and in the Human Resource Office.